Prowse and Repatriation Commission
[2000] AATA 423
•10 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 423
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/727
VETERANS' APPEALS DIVISION )
Re PETER PROWSE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date10 May 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/727
)
VETERANS' APPEALS DIVISION )
Re PETER PROWSE
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 10 May 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant's disc prolapse is a war caused injury; and
2.The Applicant is entitled to pension for incapacity occasioned by all war-caused injuries and diseases at 50% of the General Rate as from 11 August 1996 until 18 August 1996; and
3.The Applicant is entitled to pension for incapacity by all war-caused injuries and diseases at 80% of the General Rate as from 19 August 1996 until 30 June 1998; and
4.The Applicant is entitled to pension for incapacity by all war-caused injuries and diseases at the Special Rate as and from 1 July 1998.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Claim for intervertebral disc prolapse and Special Rate Pension. Smoking increased on service. Cause of disc prolapse. Assessment of inability to undertake work.
Veterans' Entitlements Act 1986 - subss24(1)(b) and (c),s28
Keeley v Repatriation Commission [2000] FCA 532
Re Allen's appeal in 16 FLR 59
Re Cavell and Repatriation Commission 9 AAR 534
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic
....................................................................................Associate
Date of Hearing 10 May 2000
Date of Decision 10 May 2000
Counsel for Applicant Mr M VincentSolicitor for Applicant R L Whyburn & Associates
Advocate for Respondent Ms G Pacey, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/727
By MR M.D. ALLEN, SENIOR MEMBER
PROWSE and repatriation department
Sydney, 10 MAY 2000MR ALLEN: I will give reasons for decision now but I reserve the right, as formal reasons were asked for, to add and amend.
The application for the Tribunal relates to an application for review lodged by the applicant on 17 May 1999, seeking review of a decision by the respondent which accepted a claim for chronic airflow limitation; rejected a claim for intervertebral disc prolapse and rejected a claim for hearing loss and assessed pension at the rate of 40 per cent of the general rate from 11 August 1996.
That decision was reviewed by a Veterans Review Board on 23 March 1999 which affirmed the decision under review in relation to intervertebral disc prolapse and amended the assessment decision to be 40 per cent of the general rate from 11 August 1996 and at 60 per cent of the general rate from and including 25 September 1997. Apparently the matter of hearing loss was not pressed and that no doubt is because the diagnosis of the condition could not be confirmed.
There is some initial confusion in this matter in that the applicant claimed for an increase in pension apparently lodged on 11 November 1996 and a claim for entitlement was lodged on 19 November 1996 relating to the back condition; so that there is a hiatus, as it were, between various dates. The actual claim by the applicant lodged on 19 November 1996 referred to a lower back condition, substance abuse plus hearing loss and chest problems.
They apparently were translated by the respondent to the conditions I have previously referred to, the application regarding substance abuse being incorporated, it would seem, into the veterans' post traumatic stress disorder which condition was accepted as war caused by a Repatriation Board on 29 May, 1984.
I will deal first of all with the applicant's disc prolapse. That incident apparently occurred in 1985 when he picked up a block of sandstone. He did this during the course of his then work as a bricklayer. Although the picking up the sandstone was, in a sense, the operative cause, it seems to me that it was simply the last act on a damaged spine which involved the
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©Auscript Pty Ltd 2000condition. It was contended today that the applicant's disc prolapse resulted from his war caused smoking habit.
As the applicant's particular claim was lodged after 1 June 1994, any reasonable hypothesis must in the terms of section 120A of the Veterans Entitlements Act conform with the so called statement of principle, as has been pointed out by the Full Court of the Federal Court in Repatriation Commission and Keeley. The particular statement of principle applicable in these proceedings is the one which was current at the time the original decision maker made his decision.
In this case, it is instrument number 130 of 1996. That document is headed, Intervertebral Disc Prolapse and reads, inter alia, paragraph 2:
That the statement of principle is about intervertebral disc prolapse. The factors which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting intervertebral disc prolapse with the circumstances of the person's relevant service are set out in paragraph 5F, smoking at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse. The term 'pack year's' defined in paragraph 7 of the said document as 7300 cigarettes.
The applicant was a smoker before he left for service in South Vietnam but, as is common with many veterans, that smoking substantially increased whilst he was in South Vietnam. A smoking history is at document T10. It appears at page 87 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and that document signed in 1996 discloses that the applicant was smoking 30 to 40 a day in Vietnam and, on his return home, was smoking at 50 a day.
In evidence I understand him to say that it perhaps 40 to 50 is more accurate. He served in Vietnam in 1969 and note from his record of service that he in fact returned to Australia on 9 December 1969, having disembarked previously in South Vietnam on 7 January 1969. He served in the 9 Battalion Royal Australian Regiment and was a member of B company of that particular regiment.
That, and the events which occurred in B company, are referred to in certain of the histories related by Mr Prowse to various psychiatrists and in particular, if one wishes to go into certain matters further, a reference to re Allen's appeal in 16 FLR 59 will give the corroboration of his story of certain events which occurred there.
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©Auscript Pty Ltd 2000Certainly his service was traumatic but I needn't dwell on that any more as his post traumatic stress disorder has been recognised as war caused. It is also clear – and if any authority is needed, I refer to McGlynn's case – that his increase in smoking was as a result of his war service.
When one does the figures as from 1970 on his return from Australia and then adds in the period in Vietnam it is abundantly clear that the figure of 3700 cigarettes pack year 30 years has been exceeded, so that the hypothesis clearly meets the template in factor 5F of the statement of principles and the decision under review, as far as relates to the applicant's intervertebral disc prolapse, is set aside and I determine that that condition is a war caused injury and the date of effect of pension therefore will be as and from 19 August 1996.
It is then a matter of assessing pension. In assessing pension, I would have regard first of all to the post traumatic stress disorder. It is difficult to say whether the applicant's alcohol abuse is a separate condition or not. At the outset, I would refer to the very full report by Dr Freed, psychiatrist, dated 25 September 1997. In the course of that report, Dr Freed noted:
Soon after Vietnam, he found once he started to drink, he would often keep going until extremely drunk. He recalls that he often drank more than he intended.
Dr Freed considered he suffered from a DSM4 substance abuse disorder alcohol and opined that he has a severe substance abuse as a direct consequence of service in Vietnam. Dr Freed also opined, which had previously been accepted of course, that he had a post traumatic stress disorder and began to discuss, having regard to the DSM, the various factors. Dr Freed also noted that he suffered from a depression. More importantly, Dr Freed concluded his report by saying:
He will be unable to work at any work because of the following post traumatic stress disorder features – B1, C5, C6 and D2 and D3. In addition he has substance abuse and its effects. He will not concentrate or endure or be predicably reliable at any work.
At document T24 is a copy of a report by Dr Hayes, psychiatrist. I pay particular regard to this report as apparently the applicant did attend Dr Hayes for some period for counselling. However, he no longer attends him because of his itinerant lifestyle. Dr Hayes reported as at 15 March 1999:
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©Auscript Pty Ltd 2000He has significant symptoms of PTSD. His sleep is intermittent and he has nightmares which relate to him burying bodies and being found guilty of murder.
I would only interpose there just refer again to re Allen.
He has some intrusive memories during the daytime and stimuli such as smells can readily flash him back to Vietnam. He is slowly becoming increasingly avoidant, although this in part relates to his alcohol abuse. He has difficulty socialising when sober. A combination of his previous back injury, PTSD and alcohol abuse have resulted in him being unable to work on a long term basis. His restlessness and instability have resulted in him not engaging in ongoing treatment.
It seems, however, from the matters before me that the alcohol abuse can safely be encompassed within the applicant's PTSD, although I note particularly that Dr Lee, psychiatrist, whom the applicant consulted at the instigation and the request of the respondent, agreed that the applicant suffered from chronic alcoholism and that his alcohol consumption is sufficient to stop him working. Dr Lee also agreed that the break up of the applicant's marriage can be attributed to PTSD.
Having regard to the alcoholism and if it were part of a PTSD, Dr Lee was cross-examined as to the degree of incapacities as assessed under the Guide to the Assessment of Veterans' Pensions, 5th Edition, which he would then attribute to the applicant. I noted that upon cross-examination, Dr Lee agreed that table 4.1 could be assessed at 10 points; table 4.2 at 6; table 4.3 at 5; table 4.4 at 8 and table 4.6 at 6 which gave a final total reading of 36 impairment points under that particular table.
That assessment I note agrees with an assessment by Dr Baz, occupational physician, in her report which is dated 27 September 1999, exhibit A5, although certainly the caveat must be that Dr Baz is not a psychiatrist. Turning then from the actual assessment of the PTSD to the assessment of the applicant's chronic airflow limitation, this revolved around various figures as in Garp but in particular I note at page 102 of the T documents, the applicant on the then available spirometry was assessed at 526 METS and on cross-examination, Dr Byrnes would not disagree with that assessment.
Given that, it would appear that the chronic airflow limitation from both figures of Dr Byrnes and also of Dr Baz, who had later spirometry figures, gives a chronic airflow limitation impairment of 4. The disc prolapse was assessed by Dr Burns, as I understand it, at 5 impairment points which on
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©Auscript Pty Ltd 2000the combined values chart, being table 80.1 in …. comes to 48 impairment points. Both Dr Burns and Dr Baz give a lifestyle effect of three and that assessment concurs with the evidence I have today. That seems too then translate as an assessment of pension at 80 per cent of the general rate from 19 August 1996. The prolapse only relates back, of course, to the 19th so that it would appear that the figures then translate as an assessment of pension at 50 per cent of the general rate from 11 August 1996 to 18 August 1996.
More importantly, however for the applicant is – having reached the magic sum of 80 per cent – is whether he is entitled to a special rate pension. The criteria for the grant of pensions special rate are set out in section 24 of the Veterans' Entitlements Act. In particular in this case, the veteran as per paragraph AAB – the subsection (1) of 24 has not yet turned 65 when the application was made. He does have pension assessed but over 70 per cent of the general rate but then follows the paragraph (b) which says:
… 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;
While paragraph (c) states:
… the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remuneration 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;
Subsection 24(2)(a) reads:
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 diseased, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason;
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I pause there. The way in which the so-called alone test should be applied was stated by Burchett J in Re Cavell and Repatriation Commission 9 AAR 534 at 539 where he said that the task of the Tribunal was to make a practical decision whether the veteran's loss of remunerative work is attributable to his service rated incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which common sense is the proper guide.
Subsection (b) of section 2 also refers to veterans under the age of 65 years but in my opinion that subparagraph does not apply in this case in that the veteran has not been seeking to engage in remunerative work because he is unable to work because of his incapacities. The evidence from the applicant is that he did bricklaying up until 1990 and then there was no bricklaying work or other work in the years 1991, 1992 or 1993.
As I understand the evidence and the reports he ceased bricklaying for two reasons. The first is that he was becoming stressed when bricklaying and the second because he was advised not to do that work by his medical practitioner following his disc prolapse.
It would appear, however that in the years 1994 through to the first part of 1998 he did do some bricklaying on an on and off basis, for example in his statement he says, "In 1995 I worked for two days in June, four days in August, six days in September. In 1996 I did approximately 50 days of bricklaying in April to July inclusive. In 1997 I did 51 days bricklaying from January to July inclusive and in 1998, in the first half of the year, I did approximately 12 days of bricklaying. He said that because of the stress involved in bricklaying he self-medicated by drinking alcohol, or put it in his words "I used to hit the grog".
The applicant has also attempted other work. At one stage he was running a coffee lounge at Moruya. That occurred for a period of about three months and he did it for his sister. He stated that it was starting to stress him out. "Increasingly the stress of long hours and face to face dealings with the public led me to have longer sessions in the pub after work." He eventually told his sister that he was not prepared to continue with that because of the effect it had upon him.
There was also another attempt, it seems, to operate snack bar at a golf club at MacLean but again that came to nothing and although financial reasons played a part in that ceasing I am more impressed by the evidence of Dr Lee that his chronic alcoholism would prevent him working. In particular too, I go back to the reports of Dr Baz in relation to the ability to work:
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©Auscript Pty Ltd 2000In my opinion Mr Prowse experiences significant disability as a consequence of post-traumatic stress disorder and alcohol abuse. The detached, understated manner of his presentation at this review is consistent with his treating psychiatrist's report, Dr Hayes, and with depression. Depression now appears to be the major psychiatric symptom, although anger, violent outbursts and irritability particularly associated with alcohol abuse have apparently been problems in the recent past.
…
The post-traumatic stress disorder causes significant limits with employability due to depression, social withdrawal, detachment, irritability and aggressive behaviour associated with alcohol abuse. In particular the depression is adversely affecting his motivation and would impact on his ability to sustain appropriate work effort or to attend work regularly.
And having referred to the snack bar and coffee shop:
… The major factor limiting his ability to continue in that type of work appears to be depression which relates to his reported lack of interest in that type of work. He envisages participation in alternative work but lacks the motivation and is apparently too irritable and tense to maintain one place of living from which he could develop and operate a business.
Dr Baz concluded that the applicant was unable to engage in paid work due to his post-traumatic stress disorder. That, to me, also corroborates in an extent or adds to Dr Lee's view that the applicant's chronic alcoholism is sufficient to stop him working as the alcoholism is, in my opinion, part and parcel of the post-traumatic stress disorder.
Dr Burns refers to the applicant undertaking a computer programming course after he left the Army but points out this was in the days of the old mainframes and he was doing card work. It would seem to me that his post-traumatic stress disorder and alcoholism would certainly mitigate against any ability to retrain to operate computers and having regard to the applicant's ability to work I must also take into account the provisions of section 28 of the Veterans' Entitlements Act which reads:
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the veteran;
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©Auscript Pty Ltd 2000(b)the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c)the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph (b).
Now, in this matter, in reality, the applicant has worked in manual occupations ever since his discharge from the Army. He has been a bricklayer's labourer and ultimately as, it seems, a self-taught bricklayer. Those occupations are out, not only because of the disc prolapse but because of other stressors from the job and as has been pointed out by his chronic alcoholism.
The reference to computer training is illusionary in that to do any computer work now would require retraining as would any form of clerical work and it seems to me that somebody with the applicant's problems of PTSD associated with chronic alcoholism it cannot be suggested that he can be retrained.
Again I refer back to Dr Lee's opinion. His alcohol consumption is sufficient to stop him working or Dr Baz, who is firmly of the opinion, as an occupational physician, that his PTSD is sufficient to stop him working and only mentions so far as Dr Byrnes is concerned he stated quite properly that he himself is not a psychiatrist so no doubt he would defer to Dr Lee's opinion in regard to non-work.
It seems to me, all in all therefore, that the decision under review is set aside; that the following determinations need to be made by the Tribunal:
(1)That the applicant's disc prolapse is a war caused injury and he is entitled to pension for incapacity occasioned thereby as and from 19 August 1996;
(2)Pension is to be paid for all incapacity occasioned by all war caused injuries and diseases at the rate of 50 per cent of the general rate from 11 August 1996 to 18 August 1996 and at 80 per cent of the general rate from 19 August 1996 to 30 June 1998 and as and from 1 July 1998 at the special rate.
I sat the date 1 July 1998 because it seems to me one has to settle on a date and that is doing the best I can on the material before me.
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