Parkinson and Repatriation Commission - [2001] AATA 777

DECISION AND REASONS FOR DECISION [2001] AATA 777

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1414

VETERAN'S APPEALS DIVISION          )
           Re      THOMAS PARKINSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member & Ms M. Carstairs, Member

Date6 September 2001
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED at all relevant times the applicant has been entitled to pension at the Special Rate.
  ......….Sgd Mr. J. Handley.................
  Senior Member
CATCHWORDS
Veterans Affairs - Veteran worked to age 66 - number of accepted disabilities - whether other disabilities contributed to incapacity - whether incapacitated - whether entitled to special rate; decision set aside.

REASONS FOR DECISION

6 September 2001 Mr J. Handley, Senior Member & Ms M. Carstairs, Member

The applicant applies to review a decision of the Veterans Review Board made on 2 October 2000 which affirmed a decision of the Repatriation Commission made on 7 January 2000. The Commission decided to increase the applicant's pension from 70% to 80% of the general rate, with effect from 30 May 1999. Mr Parkinson seeks special rate pension.
Mr DeMarchi appeared on behalf of Mr Parkinson and Mr Rudge appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons. The applicant gave evidence as did Doctor Parkin, a psychiatrist. Doctor Kenny a psychiatrist and Doctor Barton an Occupational Physician, both gave evidence on behalf of the respondent.
The application may be summarised as follows-
Mr Parkinson is presently 68 years of age, having been born on 7 March 1933. He has the conditions of a duodenal ulcer, reactive depression, chronic solar skin damage and bilateral sensori neural hearing loss accepted as war-caused. Mr Parkinson also suffers from Paget's disease and gout. Gout was rejected as war-caused in September 1976. A claim for Paget's disease has not been made.
Mr Parkinson enlisted in the Australia Army in 1952 and was discharged in 1959. He rendered operational service in Korea. Having heard the circumstances of his service in Korea we are not surprised that the condition of reactive depression has been accepted by the respondent as being related to service. Doctor Kenny (consistent with his report dated 8 June 2001) and Doctor Parkin spoke during the hearing of the more probable diagnosis of Post Traumatic Stress Disorder ("PTSD"), however that condition had not been claimed upon the respondent and no decision had been made connecting it with service.
After discharge from service in 1959 Mr Parkinson worked as a cash van salesman until about 1962. He then worked for Spicers Paper for about 2 years. He obtained employment as a plant operator during the construction of the Tullamarine Airport until approximately 1969. He then worked with a steel fabricating firm for about 2 years. From 9 March 1972 Mr Parkinson was employed as a driver and later as a foreman/driver with McCandlish and Sons until his retirement at the age of 66 on 30 June 1999.
Mr Parkinson said that his "problem" started when he was in Korea at the age of 18. Upon returning to Australia from overseas service he found it difficult to adjust. In Korea he and his comrades were under continual mortar fire. He recalled one occasion when a truck in which he was a passenger rolled when transporting a flame thrower. Mr Parkinson recalled that a great quantity of petrol and napalm was also spilt in the accident and there was then a significant risk of fire.
On return to Australia he said that he "nearly became an alcoholic" and eventually sought treatment from his local medical officer (Doctor Evans). Reactive depression was diagnosed in the early 1970's and was accepted by the respondent in November 1975. Mr Parkinson said that he was prescribed medication for depression and inability to sleep, but eventually ceased taking the medication because it affected him at work. He said that he became "scared" to drive motor vehicles because of the effect of the medication on his driving and on his concentration.
Nonetheless the applicant said that his depression was "controlled" by working because work provided him with a distraction and a personal goal. He was also encouraged by his LMO Doctor Evans to remain at work. The applicant said that whilst his depression was apparently known to other truck drivers and workers at his workplace, Mr Parkinson was able to conceal the extent of this condition from his employer, who thought that he was predominantly affected by his gastric ulcer and the Paget's disease. Mr Parkinson said that he eventually ceased work because of a severe worsening of his depression and an inability to concentrate. He said that he had a "short fuse" and was also affected by workplace changes at Kembla Copper, a major customer of McCandlish.
At present, Mr Parkinson said that he cries on most days, continues to have an inability to sleep and his relationship with his wife has deteriorated considerably. He has also considered suicide.
Mr Parkinson acknowledged that he was treated by Doctor Evans in 1976 and 1977 for his depression and medication was prescribed. The records of Doctor Evans disclosed that sinequan and tryptanol was prescribed, however he ceased taking these because of the effect upon him at work. The medical records of Doctor Evans from 1977 onwards do not record any treatment for, or prescription of, anti-depressant medication, until approximately 6 weeks after retirement in 1999. Mr Parkinson acknowledged that he did not seek treatment in the intervening years for depression, yet did speak to Doctor Evans on many occasions about his depression. He reiterated that he rejected any prescription of medication because of the effect upon him during work. Most of the treatment of Mr Parkinson in the years prior to retirement was for Paget's disease. This condition affected the applicant's right leg, right shoulder and back. Extensive reference is made to it in the notes of Doctor Evans, and annexed reports of radiologists and treating specialists at the Heidelberg Hospital. Mr Parkinson said that his treatment of Paget's disease at the Heidelberg Hospital principally involved a chemical infusion from time to time. This would be preceded by attending Doctor Evans for blood tests. One admission to Heidelberg was for three days and another for two, but more often than not the infusions were conducted as a day patient.
Mr Parkinson denied repeatedly in cross-examination that Paget's disease was responsible for his retirement. He said that the regular chemical infusion at Heidelberg Hospital kept the Paget's disease under control and permitted him to continue to work. Similarly he rejected the suggestion that the regular treatments required for Paget's disease was responsible for his retirement and any inability to work. He said as the foreman he was able to arrange work so that he would attend Doctor Evans after work for blood tests and would be admitted to Heidelberg on Fridays and could recuperate over the weekend.
Mr Parkinson told us that as a foreman driver, he would drive a truck for four of every five working days and on each of those days he would also be responsible for loading and unloading freight. The freight was 36 kilogram boxes of copper plumbing parts and six metre length of six inch copper tube, each weighing 49 kilos (which required the assistance of another worker). He said despite his age and his Paget's disease he was able to perform this work without restriction.
He also told us that he had suffered from a duodenal ulcer for 40 years, which gave him more discomfort and pain than Paget's disease, yet despite the presence of the ulcer he continued to work. He had had gout for in excess of 30 years and despite the discomfort from it, it did not interfere with his ability to work.
A statement prepared by Mr Mal McCandlish, (the applicant's employer) dated 21 February 2001 (Exhibit A) referred to the applicant's "failing physical health". On a form entitled "Employment Questionnaire", Mr McCandlish recorded that "the veteran was given Driving duties where no heavy lifting was involved and given paid leave to attend medical treatment for his condition" (T-6). He also referred to time taken off work by the applicant for his "blood condition or disease". Mr Parkinson explained that he disguised his depressive disorder from his employer because he was encouraged by his work mates to continue working as best he could. Whilst Mr Parkinson thought that there were occasions where he was "going nutty", he did not want his employer to refer to the depression in any reference that he may ultimately seek. He said that he did not want to be thought of by his employer as an "imbecile".
Additionally, Mr Parkinson said that the "blood condition" referred to by Mr McCandlish was probably a reference to either his need to attend for blood tests associated with his Paget's disease, or a belief on the part of the employer that it was his gastric ulcer which was causing the need for frequency of treatment. Mr Parkinson was not specifically asked to comment upon the reference made by Mr McCandlish in the employment questionnaire that he was not exposed to heavy lifting, yet it would appear - consistent with what Mr Parkinson told us - that Mr McCandlish had little intimate knowledge of the applicant's work. We accept that Mr Parkinson said he was held in a position of respect and trust by the employer because Mr Parkinson was placed in charge of the employer's Sunshine and Maribyrnong stores, and when Mr McCandlish was on leave, Mr Parkinson was also responsible for the store at Clayton.
Mr Parkinson told us that it was his intention to continue to work to at least the age of 70. Evidence from the employer indicates that there was no compulsory retirement age and that employment would have been available to Mr Parkinson were it not for his illnesses (Exhibit B). The applicant said that he has been offered work by other employers, since his retirement, but has rejected it because of his depression.
Approximately 12-18 months prior to retirement, the applicant told us that there was a major workplace and work practice disruption with Kembla Copper. McCandlish and Sons contracted with Kembla Copper for deliveries of copper plumbing equipment. Mr Parkinson said that managerial positions and workplace practices changed at Kembla Copper which impacted on him and other McCandlish employees. The applicant said these changes affected him considerably and caused much tension and argument. He described an occasion where about 3 months prior to retirement he was almost involved in a major motor car accident because he failed to stop at an intersection whilst he was brooding over an argument which had occurred in the workplace earlier that day.
Mr Parkinson also told us that about 9 months prior to his retirement he noted that his depression was becoming considerably worse, his sleep more irregular, and the thoughts of his prior service in Korea more intrusive.
The applicant told us that were it not for his depression he would continue to work. He has no hobbies and needs the income. Working permitted his depression to be "controlled" and it "kept him occupied". Since retirement he has noted that his depression has worsened, he cries daily, he dreams of his former service and is now being treated for depression by Doctor Evans.
Doctor Parkin
Doctor Parkin is a consultant psychiatrist who examined the applicant and provided a report dated 21 February 2001. Doctor Parkin queried whether the appropriate diagnosis for the applicant was reactive depression or PTSD but said "it is not worth redefining the illness because it (depression) is accepted as war-caused".
In evidence he said that he found that the applicant had lost confidence in himself and in his ability to work. He discounted the applicants Paget's disease or the time taken for treatment of it as a contributor to his retirement. In fact he thought that the Paget's disease was not significant. In his report he recorded that the Paget's disease was "well controlled" and did not "create any difficulties for him in driving".
He found that the applicant was depressed and thought that he was a person who possessed high standards, which caused an inflexibility to change. He also found that the applicant had a sleep disorder, which was consistent with depression and PTSD.
In cross-examination Doctor Parkin agreed that the applicant's depression had probably worsened since his retirement because Mr Parkinson did enjoy work and probably did not cope without the structure of employment. He agreed that it was possible that the applicant might have sought treatment for depression whilst he was employed, but said that "men are notoriously bad at seeking treatment for depression".
Doctor Parkin said that he had extensively consulted with veterans at the request of veterans' practitioners and at the request of the Repatriation Commission and was not surprised that the applicant had not sought treatment for depression or PTSD. He said that "few veterans call on the Departments resources for treatment" and also said that "one of the core symptoms of PTSD is avoidance, appearing to be hardy, and being reluctant to seek help". When asked to comment upon the applicant's reluctance to consume anti-depressant medication yet apparently having an ability to work, Doctor Parkin said that the applicant was a "robust character who set himself high standards".
Doctor Parkin acknowledged that Doctor Barton, who examined at the request of the respondent in December 1999, had reported that the accepted disabilities would not have prevented the applicant from working at June 1999. Doctor Parkin said that it was possible that Doctor Barton saw a "different person" from the person that he saw in February 2001.
He said that it was "understandable" that the applicant would be unhappy with workplace changes associated with Kembla, but those changes, his depression and his own high standards probably precipitated his retirement.
He acknowledged that it was possible the applicant could work as a dispatch clerk, but he noted that the applicant "likes to be in control" and thought that he may have difficulty if he is only "a small cog in the wheel".
The witness explained that he did not comment in his report on the association between retirement and the Paget's disease because although it was referred to by the applicant, it appeared to be well controlled and he dismissed it from consideration in assessing the applicant's ability to work.
In his report, Doctor Parkin concluded-
'His decision to cease work is clearly related to psychiatric problems, which fall within the scope of his Accepted Disability of Reactive Depression. Clearly this has been a major factor in him deciding to cease work although it is acknowledged that many people do cease work at this age. This is a man who enjoyed work when he was doing it and who has a strong work ethic. I see this reactive depression as being the major reason for him ceasing this work". (p. 8)

Later, Doctor Parkin records-
"He was also taking time off for his duodenal ulcer when it had a bleed but he in no way described this as a core reason or even peripheral reason for considering that he needed to give up work. It is thus my opinion that his accepted psychiatric disorder constitutes the sole reason for him being unable to work". (p. 8)

Doctor Barton

Doctor Barton is a consultant occupational physician who examined the applicant at the request of the respondent on 14 December 1999 and provided a report dated 23 December 1999. It is found at T-10, p.38.
Doctor Barton was of the opinion that the applicant's accepted disabilities would not have prevented him from undertaking the work that he was performing at June 1999. He acknowledged that the applicant did suffer from Paget's disease, but thought that it can be "variable", and whilst it could lead to significant disability he acknowledged that the applicant had told him that the Paget's disease and the gout did not interfere with his ability to work. Nonetheless he thought that the applicant's driving of motor vehicles and the heavy lifting and the frequency of it may have increased the symptoms of gout and Paget's disease.
Doctor Barton thought that the applicant could have worked as a foreman beyond the retirement date, or worked supervising others or undertaking general administrative work including driving. He acknowledged that the applicant had "got a lot from work" in terms of worth, distraction, interactivity and found it rewarding. In cross-examination Doctor Barton said that the Paget's disease, the duodenal ulcer and the gout did not stop the applicant from working. He said that the applicant ceased work because of a combination of factors: his age; his insecurity when driving and "hassles at work" permitted him to focus on retirement to avoid these other issues.
Doctor Barton heard the evidence of Doctor Parkin and acknowledged that it was the opinion of Doctor Parkin that the predominant factor giving rise to retirement was the depression. Doctor Barton however was of the opinion that "work can be therapeutic for a person with reactive depression and/or PTSD" and thought that retirement could cause these conditions to worsen because a person could "ruminate or focus on being idle".
Doctor Kenny
Doctor Kenny is a consultant psychiatrist who examined Mr Parkinson at the request of the respondent on 16 May 2001. He provided a report dated 8 June 2001.
It was his opinion that "on balance" the PTSD precipitated the applicant retiring from work, however he was of the opinion that the applicant was capable of undertaking some administrative work and work as a dispatch clerk.
In cross-examination Doctor Kenny thought that the more appropriate diagnosis for the applicant was PTSD with fluctuating reactive depression. He formed the impression that the applicant believed he was unable to work, however Doctor Kenny remained of the view that the applicant could work as a dispatch clerk and his depression or PTSD would not overwhelm him or preclude him from undertaking that type of work.
Conclusion & Reasons For Decision
Apart from the applicant the most significant witness in this application (potentially) was Doctor Evans, the applicant's LMO, who had treated him from the early 1970's. He was not called to give evidence however doing the best that we can in an examination of his extensive medical notes, it would appear that the applicant was being treated for depression in the mid 1970's when medication was prescribed. It appears - consistent with the evidence of Mr Parkinson - that the prescription of medication was ceased because the applicant said that it was having an effect upon his ability to drive.
We thought that the applicant was a witness of truth who did not seek to embellish or exaggerate his evidence. We were impressed that he continued to work until the age of 66 and we are satisfied and find as a fact that were it not for his war-caused disabilities he would have continued to work beyond that age. We are satisfied also that the evidence provided by the employer permits these conclusions. That is to say there was no compulsory retirement age and apparently Mr Parkinson was well respected by his employer and other colleagues.
We are satisfied that the applicant does have Paget's disease, which has been extensively treated but consistent with his evidence appears also to be controlled by the regular chemical infusion which he undertakes at the Heidelberg Hospital. The fact that the applicant was able to lift heavy weights regularly and routinely at work indicates to us that the Paget's disease did not have an effect upon his ability to work. Similarly the condition of gout which was also not accepted as a war-caused disability, would appear to have had little effect upon his ability to work.

We are satisfied that the applicant was a stoic and committed employee who in the presence of gout, duodenal ulcer and Paget's disease of many years standing, causing considerable discomfort and pain, remained at work and continued to work in the presence of an untreated reactive depression. We are also impressed by the fact that the applicant rejected medication for the depression because of the effect of it upon his work.
We accept and find as a fact that the applicant preferred to work as a means of coping with his depression and distracting him from the adverse effects of it.
Having observed the applicant give his evidence and having heard him answer questions of an intimacy probably not previously asked by others, we are satisfied that the combined affects of the service in Korea, the nature of the work, the nature of the treatment for Paget's disease and the combined effects of all of his illnesses and injuries have been either misunderstood or not properly appreciated in assessing his claim.
Additionally, we are satisfied that little has been understood prior to the day of hearing of the effect upon the applicant of the workplace changes at Kembla Copper and the profound effect that those changes apparently had on the applicant. We accept the evidence of Doctor Parkin that it was his irritability associated with PTSD that made him unable to cope with change in the workplace.
If it is not already clear from the foregoing we are satisfied and find as a fact that the applicant's gout and Paget's disease and his age did not affect his ability to continue to work. He had those conditions and worked with them for thirty years of working life. We are satisfied and find as a fact that the applicant is totally and permanently incapacitated and has been throughout the assessment period by reason of the war-caused injuries alone and therefore incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
Put another way, we are satisfied that the applicant, by reason of his war caused injuries alone, is prevented from continuing to undertake employment. We are satisfied that the only factors which prevent him from continuing work are his war-caused injuries. By reason of this incapacity the applicant is suffering a loss of earnings that he would not otherwise have suffered. (refer Flenjar v Repatriation Commission 1998 48 ALD 105).
Subsequent to the hearing we have learnt of a decision of Gyles J in Byrne v Repatriation Commission (N 425 of 2001) decided on 17 August. Whilst we may be repeating some of the above, we adopt the conclusions of His Honour as expressed at paragraph 10. We have decided and find as a fact, that were it not for the incapacity by the war caused injuries, alone, the applicant would have continued in employment beyond 30 June 1999. There is an abundance of evidence to establish he could have retained his employment with McCandlish, despite his age.
We therefore are satisfied that all the requirements s.24(2)A of the Veteran's Entitlements Act 1986 have been met.
It follows therefore that the decision under review should be set aside and in substitution for it, it is decided that the applicant entitled to pension at the special rate.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member & Ms M. Carstairs, Member.
Signed:         ......C. Irons ............................................
  Secretary
Date/s of Hearing  7 August 2001
Date of Decision  6 September 2001
Counsel for the Applicant        Mr D. DeMarchi
Solicitor for the Applicant
Counsel for the Respondent    Mr K. Rudge
Solicitor for the Respondent