Richmond and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 647
•28 August 2015
Richmond and Repatriation Commission (Veterans’ entitlements) [2015] AATA 647 (28 August 2015)
Division: VETERANS’ APPEALS DIVISION
File Number: 2011/5116
Re: GEOFFREY RICHMOND
APPLICANT
And: REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 28 August 2015
Place Melbourne
The Tribunal decides to affirm the decision of the respondent dated 14 February 2011 continuing the applicant’s disability pension at 70% of the General Rate with effect from 15 August 2007.
…[sgd] S A Forgie….
Deputy President
CATCHWORDS – VETERANS’ ENTITLEMENTS – remittal –disability pension paid at general rate – application for increase in rate – conditions accepted as war-caused injury – whether veteran by reason of incapacity alone prevented from continuing to undertake remunerative work and so is suffering loss of salary or wages or earnings – veteran satisfied s 24(1)(c) –decision affirmed
LEGISLATION
Health Practitioner Regulation National Law Act 2009 (Qld)
Health Practitioner Regulation National Law (Victoria) Act 2009
Veterans’ Entitlements Act 1986; sections 5C, 7, 9, 13, 15, 17, 19, 20, 21, 24, 25, 120CASES
Re Richmond and Repatriation Commission [2013] AATA 421
Repatriation Commission v Richmond [2014] FCAFC 124
Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
Richmond v Repatriation Commission [2014] FCA 272
Smith v Repatriation Commission [2014] FCAFC 53; (2014) 220 FCR 452
OTHER MATERIAL
Good Medical Practice: A Code of Conduct for Doctors in Australia, 17 March 2014
REASONS FOR DECISION
During his period of National Service, Mr Richmond rendered operational service in Vietnam from 4 April 1967 to 5 December 1967. He lodged a claim for a disability pension and an increase in disability pension on 21 March 2007. After consideration of his claim by the Repatriation Commission (Commission) and the Veterans’ Review Board (VRB), Mr Richmond lodged an application with the Tribunal. On 30 August 2010, a differently constituted Tribunal decided by consent that Mr Richmond suffered from the conditions of generalised anxiety disorder and alcohol dependence and that each was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (VE Act) with effect from 15 August 2007.[1] It remitted the matter to the Commission to determine the degree of incapacity suffered by Mr Richmond from these war-caused conditions. On 14 February 2011, the Commission assessed that degree as 70% and assessed his disability pension at 70% of the General Rate with effect from 15 August 2007.[2] Mr Richmond lodged an application for review of the Commission’s decision and it was affirmed by the VRB on 10 November 2011. On 1 December 2011, Mr Richmond lodged an application for review of the assessment.
[1] Other conditions from which Mr Richmond suffers and which have been accepted as war-caused are listed at [12] below.
[2] That would be the earliest date of effect if Mr Richmond were entitled to be paid pension at the special rate.
His application was considered and the Commission’s decision affirmed by a differently constituted Tribunal on 20 June 2013[3] but an appeal against that decision was allowed by Dodds-Streeton J last year.[4] She ordered that the matter be remitted to the Tribunal to be reheard by a differently constituted Tribunal. The Full Court of the Federal Court dismissed a further appeal so that, with one small amendment, her Honour’s orders remitting the matter to the Tribunal remained unaltered.[5] The effect of the order made by the Full Court was that:
“… the matter is remitted to the Tribunal, differently constituted, for determination according to law including the law as explained in the reasons for judgment herein.”
Although it does not appear in the formal orders made by the Full Court, they added a further criterion at [8] of their reasons requiring that:
“… On remittal, the Tribunal is to rehear the matter having regard to:
(a)the learned primary judge’s reasons in respect of the issues decided by the primary judge in relation to which no appeal is made; ...”
[3] Re Richmond and Repatriation Commission [2013] AATA 421
[4] Richmond v Repatriation Commission [2014] FCA 272
[5] Repatriation Commission v Richmond [2014] FCAFC 124; Middleton, Murphy and Rangiah JJ
The issue in this case is whether Mr Geoffrey Richmond is entitled to be paid a pension under Part II of the VE Act at the special rate provided for under s 24 of that Part. The parties have agreed that the criteria set out in ss 24(1)(a)[6] and (b)[7] are satisfied and the only criteria in issue are those in s 24(1)(c).[8] I have considered the evidentiary material in light of the law as explained by the Full Court as I am bound to do according to the terms of the remittal and have decided to affirm the decision under review.
[6] Mr Richmond’s degree of incapacity from war-caused injury or war-caused disease has been determined to be at least 70%.
[7] Mr Richmond’s incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
[8] As required by s 24(1)(d), s 25, which relates to temporary payment of pension at special rate does not apply to Mr Richmond.
BACKGROUND
There are a number of factual matters that are not in dispute between the parties. They are supported by evidentiary material in the form of Mr Richmond’s statement and by the material in the T documents. I will set them out in this section of my reasons.
Work history
Before beginning his National Service in the Australian Army on 2 February 1966, Mr Richmond had completed a five-year apprenticeship to become a boilermaker/structural steel tradesman. He spent the next two years in the Army.
On the completion of his service in the Army in February 1968, Mr Richmond returned to his work as a boilermaker until 1979. During that time, he obtained a Certificate in Technical Teaching and then a Diploma in the same discipline. That led to his teaching career beginning in 1980 and continuing until approximately 1990. He taught metal fabrication and welding first at the Geelong East Technical College, which became the Gordon TAFE. Between 1990 and 1994, Mr Richmond wrote curricula and training standards while he worked in curriculum development for Gotec. In 1995, he was self-employed as an industry training consultant before moving in 1996 to work as coxswain and to start a boat cruise business. In April 1997, Mr Richmond returned to teaching metal fabrication and welding at Goulburn Ovens TAFE.
In early 2004, Mr Richmond relinquished half his teaching load in order to write online computer based assessment programs for metal fabrication and welding. On 19 December 2004, Mr Richmond tendered his resignation from Goulburn Ovens TAFE with effect from 21 January 2005.
Mr Richmond taught at Gordon TAFE on a casual basis for the period between 26 June and 9 July 2005. Late in 2005, he applied for a position as a coxswain for Melbourne River Cruises but was unsuccessful.
Medical practitioners whom Mr Richmond consulted
The earliest records from any of Mr Richmond’s general practitioners date years from 22 February 2001. The explanation for that lies in his having moved his residence and so the medical clinic. On the basis of his oral evidence, I find that Mr Richmond’s general practitioner while he was working in Shepparton was Dr Stephen Hook and remained so until approximately 2006. When he and his wife moved from Queenscliff to Torquay in approximately July 2006, Mr Richmond began to consult Dr Hales.[9]
[9] Exhibit R2; Note from Mr and Mrs Richmond requesting transfer of their files.
Towards the end of his teaching career, Mr Richmond saw Dr Percival, who is a psychiatrist, after being referred by his then General Practitioner, Dr Hook. He did so on 7 June 2004. In 2006, Mr Richmond began to consult Dr Hales as his General Practitioner. In May 2009, Mr Richmond commenced treatment with Dr Velakoulis, who is a psychiatrist. He sees him every two or three months or so. Mr Richmond also attended a Veterans and Veterans’ Families Counselling Service Anxiety and Depression Course in 2009 followed by a mindfulness course at the Geelong Clinic in 2010.
Pension history
After lodging an application for a pension on 28 February 2005, in which he ticked both a service pension and an invalidity pension, Mr Richmond was granted an age service pension.
The Commission has accepted that Mr Richmond suffers from seven conditions, which are attributable to his operational service in Vietnam and so are war-caused as that term is used in the VE Act. They are:
hyperkeratoses;
basal cell carcinoma;
bilateral sensorineural hearing loss;
bilateral tinnitus;
non melanotic malignant neoplasm of the skin; and
generalised anxiety disorder and alcohol dependence.
The Commission has not accepted the following conditions as war-caused:
rotator cuff syndrome to the left shoulder;
pain in elbow;
situational type specific phobia;
peptic ulcer disease;
lumbar scoliosis;
hip problem;
chronic musculo ligamentous strain of the back region;
depression;
alcohol abuse;
post traumatic stress disorder and panic disorder.
THE LEGISLATIVE FRAMEWORK
Part II of the VE Act sets out entitlements to pensions, other than service pensions, for veterans and their dependants. It is accepted that Mr Richmond is a veteran as that term is defined in s 5C(1) for he is taken, because of s 7, to have rendered eligible war service and that he is incapacitated from a war-caused injury or a war-caused disease.[10] Therefore, the Commonwealth is, subject to the VE Act, liable to pay him a pension by way of compensation in accordance with that legislation.[11] As Mr Richmond’s earlier claim for a pension had been accepted, he made an application for an increase in the rate of that pension under s 15(1). He made that application in accordance with s 15(3), which required his application to be accompanied by such evidence as was available to him and as he considered relevant to his application.[12] I note that s 15(4) specifically provides that:
“Subsection (3) shall not be taken to impose any onus of proof on an applicant or to prevent an applicant from submitting evidence in support of the application subsequently to the making, but before the determination, of the application.”
[10] VE Act; s 9
[11] VE Act; ss13(1)(b) and (d)
[12] VE Act; s 15(3)
When a claim for a pension or an application for an increase is made, the Secretary to the Department of Veterans’ Affairs (Secretary) must cause an investigation to be made into the matters to which the claim or application relates. Having completed that investigation, the Secretary must submit the claim or application to the Commission for its consideration. The Secretary must give the Commission both the evidence submitted by the claimant together with any documents in the Department’s control that are relevant to the claim.[13] Section 19 governs the manner in which the Commission determines claims and applications. Section 20 sets out the date of effect that may be specified in respect of a grant of a claim for a pension and s 21 does the same in relation to a grant of an application under s 15 for an increase in pension.
[13] VE Act; s 17
Division 4 of Part II provides for the rates of pensions payable to veterans. In general terms, the Commission determines the veteran’s degree of incapacity from a war-caused injury or a war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans’ Pensions (GARP). I am concerned only with the rate specified in s 24. There are three preliminary conditions that must apply to a veteran. They are that the veteran has made a claim under s 14 or an application under s 15, he or she has not yet turned 65 when the claim or application was made and the degree of the veteran’s degree of incapacity from a war-caused injury or war-caused disease, or both, is, or has been, determined under s 21A to be at least 70%.[14]
[14] VE Act; ss 24(1)(aa), (aab) and (a)
Once the three preliminary conditions are found to apply to a veteran, attention turns to whether ss 24(1)(b), (c) and (d) apply. In this case, s 24(1)(d) does not apply because there is no suggestion that any incapacity from which Mr Richmond suffers as a result of his war-caused injury or war-caused disease, or both, is temporary within the meaning of s 25.
Sections 24(1)(b) and (c) provide that the section applies to a veteran if, in addition to the other criteria set out in s 24(1):
“(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 the 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 from that incapacity; …”
Section 24(1)(c) must be read with s 24(2). As Mr Richmond was under 65 years of age at the time he lodged his claim, only s 24(2)(a) is relevant. It provides that:
“For the purposes 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; …”
These matters must be decided by reference to the standard of proof set out in s 120(4) of the VE Act. In the circumstances of this case, s 120(4) provides that the Commission must “… decide the matter to its reasonable satisfaction.” What is meant by the expression “reasonable satisfaction” in this context has been explained by Beaumont J, with whom Northrop and Spender JJ agreed, in Repatriation Commission v Smith,[15] that the Tribunal:
“... should have asked itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”[16]
[15] Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17
[16] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17 at 335; 547; 26
THE LAW AS EXPLAINED IN THE FULL COURT’S REASONS
In this section of my reasons, I will set out the law as explained by Dodds-Streeton J, in so far as it relates to an issue in relation to which no appeal was made to the Full Court, and the law as explained by the Full Court. I will include the reference to each judgment as appropriate:
(1)Assessment of rate of pension to be made in assessment period
“ Section 19(5C) of the Act requires the respondent to assess the rate or rates of pension which would have been payable to an applicant from time to time during the assessment period. As Gordon J stated in Smith v Repatriation Commission (at [9]), s 19(5C) ‘introduces the notion that the respondent’s inquiry is not restricted to the “assessment period”’. The ‘assessment period’ is defined in s 19(9) to mean the period starting on the application day and ending when the claim or application is determined. The ‘application day’ is defined as the day on which the application was received.”[17]
[17] [2014] FCA 272 at [79]
As Mr Richmond lodged, and DVA received, his claim on 21 March 2007, that day marks the beginning of the assessment period
(2)The overall effect of ss 24(1)(b) and (c)
“ We adopt Buchanan J’s explanation of s 24(1)(c) in Smith [Smith v Repatriation Commission [2014] FCAFC 53] at [47]-[48] where his Honour said:
Section 24(1)(b) and (c), when read together, state a composite test containing a series of conditions. First, s 24(1)(b) requires that a veteran be rendered, by the war-related incapacity alone, incapable of working more than eight hours per week. Secondly, s 24(1)(c) requires that a veteran be prevented, by that incapacity alone (i.e. not for other reasons) from continuing earlier remunerative work. Thirdly, s 24(1)(c) requires that prevention for that reason from continuing that work be the cause of a loss of earnings. Fourthly, s 24(1)(c) requires that the loss of earnings would not be suffered but for the incapacity.
The operation of s 24(1)(c) is capable of being informed by the provisions of s 24(2). The overall effect of s 24(1)(c) may be summarised as one which requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason … (Emphasis added.)”[18]
[18] [2014] FCAFC 124 at [24]
(3)Construction of s 24(1)(c)
(a)“… While the appeal requires close attention to what was said in Flentjar and other authorities the application of s 24(1)(c) is not to be ascertained by construing the words in the authorities as if they were the words of the statute: Brennan v Comcare (1994) 50 FCR 555 at 572 per Gummow J.”[19]
[19] [2014] FCAFC 124 at [50]
(b)“ The issue as to whether Mr Richmond’s voluntary decision to cease working at Goulburn Ovens TAFE and Gordon Institute falls to be considered under the first or second limbs of the section is not just a theoretical question. On remittal it will be necessary for the Tribunal to decide whether Mr Richmond’s frustration with the students, staff and working environment at Goulburn Ovens TAFE and Gordon Institute, and his decision to cease working at those institutions, was in fact a consequence of his accepted war-caused generalised anxiety disorder. It is common ground between the parties that the enquiry under the second limb is less stringent than under the first limb, which underlines the importance of determining what are the relevant factors, and what are impermissible factors, under the first limb.”[20]
[20] [2014] FCAFC 124 at [56]
(4)Construction of first limb of s 24(1)(c)
(a)“… The first limb, which is capable of being informed by s 24(2)(b), requires a causal connection between the veteran’s war-caused incapacity, alone, and the veteran’s inability to undertake the remunerative work he or she previously engaged in.”[21]
[21] [2014] FCAFC 124 at [52]
(b)“… [I]f there is a non-war caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the alone prevented test will not be satisfied.”[22]
[22] [2014] FCAFC 124 at [37]
(c)The “alone” test of the first limb of s 24(1)(c) means:
(i)the decision-maker must:
“… exclude a claim, where, notwithstanding such a [war-caused] condition, other factors (including medical conditions) prevent such employment.”[23]
[23] [2014] FCAFC 124 at [41] and [42] and [2014] FCA 272 at [81]
(ii)“ We respectfully agree with the learned primary judge’s view (at [108]) where her Honour said:
The authorities in my view establish that if there is a non war-caused factor which prevents, or contributes to preventing, the veteran from continuing to undertake the relevant remunerative work, even if it is only of secondary weight and insufficient in itself to prevent the veteran from continuing, the ‘alone’ test will not be satisfied.”[24]
[24] [2014] FCAFC 124 at [65]
(d)“ The learned primary judge held that the expression ‘alone, prevented from … work’ in the first limb of s 24(1)(c) excluded from consideration a factor acting as an incentive or influencing a decision by a veteran voluntarily to cease the relevant remunerative work. In her Honour’s view the prevented element of the alone prevented test could only be satisfied by factors which ‘prohibit, disable or restrain’ the veteran from continuing to engage in the remunerative work and not by factors which induce or provide the veteran an incentive to cease that work.
…
We do not accept the Commission’s contentions. Having regard to the text of s 24(1)(c) including the ordinary meaning of the words ‘prevented from’, as well as the overall structure of s 24, we respectfully agree with the learned primary judge’s construction of s 24(1)(c). However, we respectfully eschew her Honour’s gloss on the word ‘prevented’ which included statements that satisfaction of the test requires an ‘involuntary barrier’ or requires factors which ‘prohibit, disable or restrain’. In our view the ordinary meaning of ‘prevented’ in s 24(1)(c) is unambiguous and there is no requirement to use other words or expressions.
In understanding the section the focus must remain on the meaning of ‘prevented’, or more particularly ‘prevented from’, rather than on other words or expressions.”[25]
[25] [2014] FCAFC 124 at [70]-[74]
(e) “ The enquiry under the first limb is therefore whether the veteran’s war-caused incapacity alone, prevented, the veteran from continuing to undertake remunerative work he or she previously engaged in. It is factors that prevent the veteran from engaging in remunerative work that are relevant to the enquiry under the first limb of s 24(1)(c).
On a plain English approach to the provision we do not consider that a veteran is ‘prevented from’ engaging in remunerative work by the veteran’s voluntary or elective decision to cease work for a reason other than incapacity. The ordinary meaning of ‘prevented from’ does not include such voluntary or elective choices …”.[26]
[26] [2014] FCAFC 124 at [77]-[78]
(f)“… Dowsett J in Peacock [Peacock v Repatriation Commission [2004] FCA 1449] considered the meaning of ‘prevented’ and concluded that factors such as the availability of the veteran’s superannuation benefits may have been an incentive for him to retire, but it could not have prevented him from engaging in remunerative work. We respectfully agree with his Honour’s approach …”[27]
(4) Construction of second limb of s 24(1)(c)
“ The second limb, which is amplified by s 24(2)(a), requires a causal connection between that inability to work and the veteran’s suffering of financial loss. The enquiry under this limb relates to whether the veteran’s financial loss is a result of his or her war-caused incapacity.
As Buchanan J said in Smith (at [48]), the overall effect of s 24(1)(c) is that an applicant for the special rate of pension ‘requires a demonstrated loss of earnings as the direct result of the war-related incapacity, and only for that reason.”[28]
[27] [2014] FCAFC 124 at [97]
[28] [2014] FCAFC 124 at [53]-[54]
CONSIDERATION
In the Attachment to these reasons, I have summarised the evidence that I have been given. I have tried to match the evidence with the relevant time in which it came into being. At times, such as in the case of Mr Richmond’s statement or Mr Dixon’s evidence, it is evidence given in more recent times about events in the past. I have attempted to reflect that difference as well as keep it well in mind in considering contemporaneous evidence. The evidence is no less part of these reasons for being set out in an Attachment. It is in fact an integral part of my reasons, for setting it out in that way has assisted me to analyse the evidence objectively and to come to my conclusions.
The Australian community expects a high standard of health care and pivotal to the system of health care that has evolved is the medical practitioner. A medical practitioner practising as a general practitioner will often be the first port of call of any person seeking care. In caring for their patients, a medical practitioner will bear in mind the publication “Good Medical Practice: A Code of Conduct for Doctors in Australia” (Code of Conduct) dated 17 March 2014. It has been prepared by the Medical Board of Australia under s 39 of the Health Practitioner Regulation National Law, which is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and in force in Victoria by virtue of s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic).
The Code of Conduct is a comprehensive document that, while not binding, provides guidance to support medical practitioners in providing good medical care, fulfilling their professional roles and providing a framework for good professional judgment. The Code of Conduct also assists the Medical Board of Australia in its role to protect the public by setting and maintaining standards of medical practice against which a doctor’s professional conduct can be evaluated. In referring to the Code of Conduct, I do not in any way suggest that any medical practitioner referred to in these reasons has been anything other than exemplary in his or her professional conduct. I have referred to it because it places an emphasis on the relationship, and indeed partnership, between doctor and patient and upon effective communication with the patient that is fundamental to a doctor’s providing good medical care to a patient. It also emphasises the importance of good communication and effective relationships with other health professionals and referral to other health professionals as appropriate.
It is apparent from the clinical notes and medical reports that are in evidence in this case that there has been, as there should, a relationship of trust between Mr Richmond and his medical practitioners. He has told them about the symptoms he experiences and gives them his history. It is a history that his medical practitioners have accepted and used as the basis of their process of diagnosis and treatment in the case of his treating practitioners and psychiatrists. Having regard to the history Mr Richmond has given them, they have no reason to question its accuracy. Rather, they accept it and he has been diagnosed and treated on the basis of the history he has reported. That approach is unexceptionable when regard is had to the Code of Conduct and the Code of Ethics.
The focus on the patient and the patient’s needs is apparent in an answer that Dr Hook gave in his evidence set out at [130] below. He gave what I would describe as a holistic approach to the practice of general medicine and allied health areas. In summary, he explained that the actual diagnoses are not the important thing. The patient’s symptoms and how the patient is coping are the important things. He saw that Mr Richmond was not coping because of a number of reasons and the best solution was for him to retire and get rid of one of the causative factors which was the stress at work. Dr Hook did not refer to the stress Mr Richmond felt from his accepted conditions and the effect that it was having on his work.
When Mr Richmond’s treating medical practitioners were asked to express their opinion about the reasons for his resigning from his position at the Goulburn Ovens TAFE, their opinions are necessarily based on what he has told them. Unless given further information either in preparation for the hearing or during the hearing, they are limited to what he has told them. I am not subject to that same limitation for I must have regard to all of the evidence in deciding whether or not Mr Richmond satisfies s 24(1)(c), of which the history that he has given to his medical practitioners is only one part. If it were otherwise, Mr Richmond could make his case for satisfying s 24(1)(c) simply by relying on the opinions of medical practitioners who have accepted what he has told them.
While I understand that in giving an account of certain events that have happened, there will be variations in the versions each time. Some things will be omitted and others added while some will be given more emphasis or retold in greater or lesser detail in one account than in another. For all those variations and changes, the form and shape of the events retain a certain consistency. I am satisfied that there is that certain consistency when I look at the reports of the effect of his condition on his work in the records of the medical practitioners who treated or reviewed Mr Richmond up to the time before he decided to submit his resignation in December 2004. Their evidence is set out in the Attachment but it shows:
Date
Doctor
Evidence
Reference to symptoms of anxiety etc. or to effect on work
22/02/01
Dr Gwynn
GP[62]
No reference to either
07/03/01
Dr Percival
PsychiatristReference to symptoms but no reference to work
02/04/04 to 08/12/04
Dr Hook
GPReference to symptoms but no reference to work
07/06/04
Dr Percival
Psychiatrist“Essentially he describes himself as becoming increasingly impatient and irritable, more reserved in himself, and less comfortable in groups. At the same time he became increasingly anxious, particularly in situations where he felt he had allowed an element of confrontation with students to develop in his work as a welding instructor with TAFE.”
30/08/04
Dr Newlands
Psychiatrist“His concentration was reduced, though his organizing skills appear to be fine, particularly whilst at work.”
The first reference in Dr Hook’s notes to Mr Richmond’s suffering anxiety appears on 2 April 2004 and is followed by others. I have set these out at [90] to [91] below. In none of those notes made in 2004 is there any reference to the effect of Mr Richmond’s symptoms on his ability to work. The absence of any reference to his work is consistent with two things. The first is that reference had been made to work by Dr Percival in his second report in June 2004 and that had been copied to Dr Hook. Dr Percival’s reference to irritability was consistent with Dr Hook’s own notes and the only additional factor recorded by Dr Percival was that of Mr Richmond’s feeling that he had allowed an element of confrontation to develop with the students. Dr Newlands had not recorded any adverse impacts on Mr Richmond’s work as a result of his conditions.
The absence of any reference to any effect on his work is also explicable by the fact that he was treating Mr Richmond and, according to Dr Hook’s notes, Mr Richmond began to feel better after he began treating him with Zoloft. Dr Hook noted that Mr Richmond was suffering less agitation and anger, especially towards his wife. After suffering increased shakes from Zoloft, Dr Hook prescribed Lexapro and he noted that Mr Richmond was still suffering some anxiety and mood swings but was much better as were his shakes. The absence of any reference to any impact that Mr Richmond’s anxiety was having on his work or his ability to undertake it suggests that it was not having an impact.
That is not how Dr Hook saw matters later. His note of 22 February 2005 written after Mr Richmond’s resignation had taken effect talks about Mr Richmond’s increasing difficulties coping with the stresses at work. That is not consistent with his earlier notes that Mr Richmond was feeling much better on the treatment. The fact that Mr Richmond did feel better while he complied with his treatment regimen is supported by the references in the clinical notes of other medical practitioners that he stopped his medication at times because he felt well. I refer particularly to those of Dr Stacey Harris on 9 February 2006 when Mr Richmond went to her about his suffering from anxiety/depression. He told her that he had been on Lexapro but had stopped six months before because he thought that he was all right. The same pattern was repeated a couple of years later. Dr Hales noted that on 28 March 2008 that Mr Richmond had stopped taking Zactin following his PTSD course but the symptoms had gradually returned. Mr Richmond had undertaken the PTSD course two years earlier in February and March 2006 according to Dr Harris’s notes.
There is nothing in the evidence to suggest that Mr Richmond had stopped taking Zoloft when he made his decision to resign in December 2004 or when his resignation took effect on 21 January 2005. I do not have any contemporaneous evidence that suggests that his Anxiety and Alcohol abuse were having an effect on his ability to teach. Mr Richmond did not, for example, take leave from the Goulburn Ovens TAFE because of his inability to cope with the work. The only record that has been produced of his taking leave from his work is a Medical Certificate signed by Dr Nanayakkara. That establishes that, at the time, it was thought that he was suffering from ischaemic heart disease in the four week period beginning on 22 May 2002. At the time, there was no reference in Dr Hook’s notes to any complaints made by Mr Richmond of symptoms associated with anxiety and none appeared until 2004.
Mr Richmond did not take advantage of the Goulburn Ovens TAFE’s invitation to complete an Exit Survey. That would have been an opportunity to air his concerns about the issues and difficulties that he had experienced in managing the students in his years there. His not doing so might be explicable, however, by the fact that he felt that the problems lay with him but I have no evidence as to why he did not respond and cannot take the matter any further.
Had Mr Richmond walked out of class as he said that he did, it might be thought that there might be some record of his having done so if it were more than an isolated incident. The records at Goulburn Ovens do not record behaviour of that sort. It might be thought that his colleagues would note that sort of response to student behaviour and yet there is no evidence to that effect. If it were repeated behaviour, it might be thought that it would become known for it appears that teachers from the various TAFEs associated from time to time. I find that there were regular meetings of teachers on the basis of the evidence of Mr Dixon.
Mr Dixon had worked with Mr Richmond at the Geelong East Technical College, later the Gordon TAFE, and that is not a period of his life in which Mr Richmond felt that he was experiencing difficulties. Mr Dixon did, however, meet with Mr Richmond at regular meetings from 2001 or 2002 and for quite a few years after that. There is no suggestion in his evidence that he had any inkling that Mr Richmond was suffering any difficulties with his work. Issues of the sort that caused Mr Richmond concern were discussed at those meetings for they were common concerns. They included student attitudes, lateness and behaviour in class that were of concern to Mr Richmond.
In summary, if I were to have regard only to the evidence to December 2004, it does not satisfy me that Mr Richmond was prevented from continuing to undertake remunerative work that he had been undertaking as a TAFE teacher by reason of his Anxiety and Alcohol Abuse or any other of his accepted conditions. His condition was being treated, he was feeling better on that treatment and he was not expressing difficulties with his duties to any great degree. Dr Percival has mentioned some feelings that Mr Richmond experienced at work but has not expressed any conclusion that he was prevented from continuing his work. Dr Newlands’ reference to work was that his concentration was reduced but his organising skills appeared to be fine and particularly while he was at work. Dr Hook’s notes show that, under treatment, Mr Richmond was feeling better than he had.
I turn now to the evidence relating to the period after Mr Richmond resigned for I must have regard to the whole of the evidence. The evidence that I do have relating to the reasons for his leaving work in January 2005 because of the symptoms of anxiety that he was suffering from his anxiety all come after that month. Dr Hook, for example, expressed the opinion that Mr Richmond could not face work because of his anxiety and could not cope when he wrote his clinical note of 22 February 2005. He began his note by referring to Mr Richmond’s letters for it is clear that the details that he included in his note were drawn from Mr Richmond’s letter to him dated 7 February 2005 rather than from consultations that had preceded that day. The clinical notes of his consultations refer only to anxiety, teariness, claustrophobia due to experiences in Vietnam and shakes. Dr Percival referred to irritability and confrontation. As there was no mention in his letter of feelings of becoming easily flustered, lacking concentration and having to walk out of a class, those matters must have been mentioned by Mr Richmond at the consultation on 22 February 2005 and so after his resignation had taken effect.
The other piece of relevant evidence that relates to 2005 is Mr Richmond’s decision to teach at the Gordon. Certainly, he did not teach full-time over the two week period for which he was engaged but the relevance of the evidence is that he taught at all. His returning to teaching at all at that time is inconsistent with his evidence that he could not continue teaching some six months earlier because of his anxiety.
In his report dated 17 May 2006, Dr Strauss, a Consultant and Occupational Psychiatrist, did not address Mr Richmond’s capacity for work. Dr Michael Epstein, a Psychiatrist, considered the subject at a cursory level but did not link the mild generalised Anxiety Disorder from which he found Mr Richmond to be suffering with any incapacity to undertake remunerative work. All that he noted was that Mr Richmond was getting grumpy and could not handle his students as he once did. Mr Richmond had changed his duties to take on more duties of an administrative nature. Dr Cronin took a similar approach in his first report dated 13 July 2005 observing that Mr Richmond was getting grumpy and could not handle the “children” as well, was not getting any job satisfaction and did not like the changes in the education system. He did not link Mr Richmond’s difficulties with work in 2004 with the symptoms of his accepted conditions although he made some link two years later.
That was in his second report dated 6 September 2007, Dr Cronin did so in stating that Mr Richmond’s panic attacks persisted to a lesser degree during his civilian employment but exacerbated as he approached retirement. That was said by Dr Cronin in the context of Mr Richmond’s panic attacks. When, however, he was reporting on Mr Richmond’s work as a teacher, he made no mention of panic attacks or symptoms of anxiety as reasons for his finding the younger generation difficult to cope with. Rather, the reasons were that the members of the younger generations seemed spoilt, had an attitude Mr Richmond did not like, were not prepared to work and lacked respect for him. I realise that I should be careful not to analyse the words of a particular passage of a report such as Dr Cronin’s too closely and to read it as a whole in order to gain a proper sense of it. Even when I do that, it seems to me that the reasons he has given for Mr Richmond’s difficulties in teaching remain focused on what Mr Richmond saw as shortcomings of the students and not on difficulties, such as panic attacks, that he was experiencing as a result of his accepted conditions.
The questions that Dr Cronin was asked about Mr Richmond’s ability to work were not directed to the time at which he resigned from the Goulburn Ovens TAFE or the period preceding it. I have reproduced the first four at [145] below. Each is framed in terms of the present which, at the time, was September 2007 and not the time leading up to his resignation in 2005. Even if they are to be read as relating to that period, Dr Cronin has not drawn any link between Mr Richmond’s suffering panic attacks, generalised anxiety, depression, irritability, loss of confidence and alcohol abuse with his finding difficulties with being a teacher because of his perception of the students’ shortcomings.
Dr Strauss’s report dated 17 May 2006 does not support a link between Mr Richmond’s anxiety and other symptoms and any effect on his work but he was required to direct his attention to whether Mr Richmond’s condition was war-caused rather than as to the reasons for his giving up his remunerative work. In the previous year, Dr Epstein had also been asked to address the former issue and not the reasons for his giving up remunerative work. Dr Epstein did offer a comment, though, on Mr Richmond’s work. His comment was framed in terms of Mr Richmond’s becoming old and grumpy and not handling the students as he once did. He did not link his being old and grumpy and the way he handled students with the symptoms of anxiety or any other condition from which Mr Richmond suffered.
At a time much closer to his submitting it than is now the case, Mr Richmond himself did not link his reasons for submitting his resignation with the symptoms he associated with his war-caused conditions. In his initial claim dated 21 January 2005 for a service pension, he stated that he was “Unable to cope with people/situations required in my employment”. While he stated that he was suffering from Anxiety and Depression, he did not list symptoms and how his symptoms led to his being unable to cope in the way he described. The reasons that he gave in the Employment Questionnaire he completed on 9 May 2007 were to the same effect and, again, there was no link with the symptoms from which he suffered due to any of his accepted conditions:
“- Unable to cope with students attitudes/work ethics, management policies, practices & procedures and occasionally some staff.
Eligible for service pension”
Mr Richmond set out a similar statement when completing a later DVA questionnaire on 19 October 2010.
For the reasons I have given in this passage of my reasons, which draws on the summary of evidence in the Attachment, I am not satisfied that Mr Richmond satisfies the first limb of s 24(1)(c) i.e. he was, by reason of incapacity from his accepted conditions, alone, prevented from continuing to undertake remunerative work that he had been undertaking. That means that the second limb of s 24(1)(c) does not arise for consideration.
That brings me to s 24(2). The interpretation of s 24(2) adopted by the Full Court of the Federal Court in Smith v Repatriation Commission[29] was set out in the judgment of Rares J. Section 24(2)(b), he said:
“… can apply both to a veteran who has never been engaged in remunerative work and to one who had, but for any reason, subsequently ceased work, and later sought to obtain remunerative work. …”[30]
Buchanan J was of the same opinion[31] as was Foster J.[32] I am bound by their view.[33]
[29] [2014] FCAFC 53; (2014) 220 FCR 452; Rares, Buchanan and Foster JJ
[30] [2014] FCAFC 53; (2014) 220 FCR 452 at [21]; 458
[31] [2014] FCAFC 53; (2014) 220 FCR 452 at [49]; 466
[32] [2005] FCAFC 53; (2014) 220 FCR 452 at [181]-[183]; 491
[33] At Attachment C to my reasons in Re Smith and Repatriation Commission [2015] AATA 27 at [151]-[180], I set out my difficulties in understanding their Honours’ interpretation of s 24(2)(b).
Mr Richmond satisfies the first criterion in s 24(2)(b) because he had not attained the age of 65 years for part of the assessment period. That part included the 2005 year. That is a significant year for, I find, it is the only year in the assessment period in which he either looked for work or was approached for work.
With regard to the work at the Gordon TAFE, Mr Richmond was not clear as to how he came to be offered a position. Mr Dixon was quite clear that casual positions of the sort offered to Mr Richmond were not advertised. In light of that and in light of Mr Dixon’s evidence that another colleague had heard that Mr Richmond might be available for work, I find that Mr Richmond was approached by or on behalf of Mr Dixon about working on a casual basis. On the basis of Mr Richmond’s evidence, I find that he was open to work for he had been looking in the Geelong Advertiser for work. He could, on that basis, be said to have been seeking to engage in remunerative work even though the particular opportunity came about by means other than those he was using to seek remunerative work.
He said that he suffered symptoms during the two week period for which he was engaged but, on the basis of Mr Dixon’s evidence, I find that any difficulties he was experiencing were not apparent to others for he was offered a position in the pool of casual teachers who would be offered further work. In any event, I find that any symptoms from which he was suffering, were only part of the reason for his not continuing with the work. On Mr Richmond’s evidence, the pay was such that, after allowing for adjustment of his DVA pension to have regard to any earnings, he thought he had no financial incentive to work. Therefore, I find that his incapacity was not the substantial cause of his inability to obtain remunerative work. He could obtain it and was in fact offered it. He does not come within s 24(2)(b) and so cannot rely on its ameliorating provisions.
For these reasons, I have decided that Mr Richmond is not entitled to be paid pension at the special rate under s 24 of the VE Act and affirm the decision under review.
EVIDENCE
Residences
In cross-examination, Mr Richmond said that he and his wife grew up in the Geelong area. They raised their children there and their children and grandchildren continue to live in the area. In 1997 or 1998, they purchased a house at St Leonards. At this time, Mr Richmond had started work at the Shepparton Campus of the Goulburn Ovens TAFE. During the five years or so that they owned the house in St Leonards, they renovated it. They sold it because his wife suffered a heart problem and she could no longer care for the garden. After selling it, they bought a townhouse in Queenscliff. In 2004, Mr Richmond and his wife owned that townhouse free of mortgage. They stayed there before moving to Torquay. They now rent a property in Queenscliff and have not made plans where to buy a property although it will be somewhere on the Bellarine Peninsula.
In 2004, Mr Richmond said, he would have had perhaps four grandchildren. He now has eight. He loves them all but can only take so much of them. He is afraid to say that he was the same with his own children and did not give them the time he should have. That said, the children might visit him and his wife in Shepparton for the weekend when they were there. Occasionally, he and his wife stayed in Shepparton on their own but otherwise they drove back to Queenscliff each weekend.
Mr Richmond said that he was not “over enthused” about driving and his wife did the driving. When she suffered from a heart problem in 2002, he stayed in Shepparton on his own for a couple of weeks. After receiving a stent, his wife felt better and returned to Shepparton. Mr Richmond said that he did not have much of a social life at Shepparton.
Work and health up to and including 2001
A. Mr Richmond
In giving his evidence, Mr Richmond said that he had begun to drink in Vietnam where beer was so cheap. Its availability was one of the reasons for his doing so and the other was to rid himself of the claustrophobic feelings he had and the heat and the sand. Drinking would help him get to sleep. He might wake up earlier and then deal with the heat and the sand. On his return, he did not have any difficulty in sleeping. If he was in an area that was light and spacious and he could open a window, he was all right. At night, he might wake up for an hour or two but would then go back to sleep.
In cross-examination, Mr Richmond said that he had suffered panic attacks since about 1970. In 1970, his second son was born and his auntie died. He was in Yarrawonga in summertime without an air conditioner. When Ms Maud asked him whether he thought that he had suffered from anxiety since returning from the war in Vietnam, Mr Richmond replied that possibly he had. It was what he thought was normal but perhaps it was not.
In cross-examination, Mr Richmond said that he was happy teaching and enjoyed it while he was at the Geelong East Technical College. He did not have the issues that he was later to have at the Goulburn Ovens TAFE. “Not at all”, he said when asked in giving his evidence whether he had experienced symptoms of anxiety at the Geelong East Technical College. There was the “odd one”, he said, but the nature of the students seemed better. He thought that he would teach for ever as he really enjoyed teaching. The time that he started to work at Goulburn Ovens TAFE coincided with the time that he found teaching more stressful. He did not get anxious at the Geelong East Technical College, Mr Richmond said in cross-examination, but then he thought that it was all normal.
In the years between 1990 and 1994 when he worked in curriculum development, he conducted the odd “train the trainer” session but was not engaged in teaching as such. Mr Norman Dixon, who also worked at the Geelong East Technical College and to whom I will return, was not engaged in curriculum development. Mr Dixon was the Team Leader/Educational Manager of the Metal Fabrication Department at the Gordon.[34]
[34] Exhibit A2
On his return to teaching in 1997, he worked at the Goulburn Ovens TAFE in that year and the following year. In his statement dated 12 December 2011 said that:
“… Whilst teaching at the TAFE I had friction with students, management and colleagues. Indeed, early in my employment at Goulburn Ovens TAFE I walked out of a class and that the catalyst for the walkout was a lack of punctuality by students.”[35]
In cross-examination, Mr Richmond said that he had walked out of the class because of the lack of punctuality by the students. He agreed with Ms Maud’s proposition that he had had problems with students from the beginning but this incident had really stood out for him. His actions had led to repercussions with his supervisor. He was ostracised because he had not let his supervisor know what he had done.
[35] Exhibit A1 at 1
Lack of punctuality was only one of the problems he encountered. Although he did not recall their doing so at the beginning, the students verbally abused and belittled him on more than one occasion later on. While he did not feel physically threatened, he came very close to feeling that way. Mr Richmond said that he did not recall precisely the year in which the students began to behave in this way. It was not one particular class that did so but rather a couple of “nuisances” or “radical individuals”.
In his statement dated 10 October 2005, Mr Richmond referred to his health since his return from Vietnam:
“Ever since my service in Vietnam I have suffered depression, feelings of melancholy, moodiness, anxiety and claustrophobia. I have found that I am more easily startled since my service in Vietnam. I have also found that I am less outgoing since Vietnam and prefer to avoid social occasions. I have also suffered from panic attacks which seem to be triggered by being in confined spaces and/or being subjected to hot, humid weather conditions. I recall, for instance, an incident when I attended a funeral in Yarrawonga about 30 years ago and was overwhelmed by the heat and confinement of the motel room in which I was staying. On another occasion, I was standing on the Queenscliff pier with my wife when for no apparent reason I had a severe panic attack. This prompted me to follow up with my doctor in Shepparton, Dr S Hook, where he diagnosed anxiety/depression and referred me to Dr C Percival. I did not suffer claustrophobia or phobias relating to heat prior to my service in Vietnam.”[36]
[36] T documents at 134
In his oral evidence, Mr Richmond said that he had told his general practitioner at Shepparton of the incident after it occurred. His general practitioner at the time was Dr Hook, who referred him to a psychiatrist, Dr Christopher Percival. In his statement dated 12 November 2005, Mr Richmond said that Dr Hook diagnosed anxiety/depression and referred him to Dr Percival. I return to Dr Percival’s first report at [63]-[65] below. Mr Richmond agreed that Dr Percival’s summary of his symptoms was correct.[37] He added that they did not occur in any particular locations. Once he moved from the circumstances in which they occurred, they settled “to a degree”. He found that the frequency of the anxiety attacks increased and he could not show his students welding techniques because of the tremors he suffered.
[37] These are set out at [64]-[65] below
In cross-examination, Mr Richmond agreed that Dr Percival had not made mention of his panic attacks but denied that was so because those panic attacks had not occurred. Mr Richmond said that he and Dr Percival did not hit it off and he did not tell him everything. It is as simple as that. When Ms Maud asked him why Dr Hook had referred him to Dr Percival a second time, Mr Richmond responded that Dr Hook must have thought that he had expertise. He did not know but he did know that they had no rapport on the first occasion.
B. Medical evidence
B.1 Dr Ronald Gwynn
Dr Ronald Gwynn examined Mr Richmond on 22 February 2001 for the purposes of a “Vet report”. He reported that Mr Richmond suffered from painful elbows in winter (nothing abnormal was detected on examination), a painful left shoulder (on examination, pain was experienced at abduction greater than 45 degrees), PD painful arc syndrome, multiple solar keratosis and basal cell carcinoma.[38]
[38] Exhibit R1 at 1
B.2 Dr Percival’s report in 2001
Dr Christopher J Percival is a Consultant Psychiatrist. He prepared a report on 7 March 2001 after seeing Mr Richmond earlier in the month. It is addressed to DVA. Mr Richmond said that he had “no idea” why he went to see Dr Percival. Dr Percival summarised Mr Richmond’s service history after joining the Army as a National Serviceman in 1966 at the age of 21. After completing his training, Dr Percival wrote, Mr Richmond was a Sapper with the designation of Driver-Radio Operator. After serving for a further three months, Mr Richmond applied for a posting in Vietnam and, as a consequence, completed a jungle warfare course at Canungra before being posted to Vietnam. In his eight month posting in Vietnam, Dr Percival recorded, Mr Richmond was:
“… posted to Vung Tau, and … involved in routine driving duties. Although somewhat uncomfortably close to a fuel depot when it was ignited by a motif [sic] cocktail, he was not exposed in general to anything that could be said to be more than a greater level of physical discomfort than he would have experienced in similar life in Australia, and himself makes no claim to have been in anyway traumatised by the explosion referred to.”[39]
[39] Exhibit R3 at 1
In his report, Dr Percival summarised the symptoms Mr Richmond had described to him:
“… In so far as the phenomenology of his presentation is concerned he describes circumstances in which he developed mild attacks of increased anxiety. These occur in relatively confined places, such as a shower recess, or in darkness, or, occasionally, simply when he has his eyes shut under low light conditions. They are characterised by a feeling of need to escape from the situation, either by finding light, or leaving the enclosed space, and associated with a subjected feeling of shortness of breath, palpitations, and sweating. However they cease promptly once he is relieved from the inciting circumstances, and on average only occur approximately once every two months. Other than this however he has no spontaneous complaints suggesting any psychiatric morbidity, and, in response to specific questioning he describes himself as a more placid individual than usual, who sleeps well, is not generally hyper aroused or possessed of an excess startle reaction, and who is not subject to any dreams or intrusive thinking about past unpleasant experiences.”[40]
[40] Exhibit R3 at 1
After setting out Mr Richmond’s personal and service history, Dr Percival concluded:
“In summary then we are dealing with a man who presents with an extremely mild Specific Phobia, situational type, (DSM IV 300.29), furthermore there is no reason in my mind to postulate any etiological connection with his service with the Australian Army, an opinion which I have conveyed to Mr Richmond, and which he appears to accept philosophically. I have also pointed out to him that, even if one were to establish a theoretical etiological connection, then the degree of disturbance in his life is so minimal that it would not register on the scales employed by the Department of Veterans’ Affairs for registering the impact of psychological disorder upon the veteran’s life.”[41]
Work and health from 2002 to 2003
[41] Exhibit R3 at 2
A. Mr Richmond
In 2002, he suffered from chest pains when he went out running. He consulted his general practitioner, Dr Hook, and was referred to the hospital. Following investigative tests in hospital in Shepparton, Dr Nihal Nanayakkara transferred him to hospital in Melbourne where he underwent an angiogram. The angiogram proved to be clear.[42] Dr Nanayakkara gave him a Certificate of Sickness for a four week period beginning on 22 May 2002 on the basis that he was suffering from IHD i.e. ischaemic heart disease.[43]
[42] Dr Hook wrote “Normal coronary angiogram” in his clinical notes dated 20 June 2002: Exhibit R1 at 2.
[43] Exhibit R12
Mr Richmond said that he had suffered chest pains previously but they had subsided. For at least the previous ten years, they would occur once or twice each year. In 2003, Mr Richmond said that he suffered chest pains again on Nuns Beach at Queenscliff after going for a swim. He attended a locum and told him that he had undergone an angiogram the previous year, he said. The locum had told him not to bother undergoing another. Mr Richmond could not recall whether he discussed the matter with Dr Hook.
B. Dr Hook
In giving oral evidence at the previous hearing, Dr Hook said that he had noted on 20 June 2002 that he had written a referral letter to Rod Warren followed by the words “normal angiogram”. That meant that Mr Richmond must have been complaining of some sort of chest pain and that he had been referred for clarification as to whether he had any coronary arterial problems. Mr Richmond had not complained to him of chest pain after that date.
As to the cause of the chest pain, the following exchange took place between Ms Spencer, who represented Mr Richmond, and Dr Hook:
“… --- … Now, at the time back then we didn’t have any mention of the anxiety and stress condition and it is possible chest pain can relate to anxiety and stress. But there’s certainly been no mention of chest pains subsequent to 2002, that I can find in the file.
Is it possible though given that you’ve just said that chest pain can relate to anxiety and stress, that the chest pain in 2002 may have been so related? --- From the notes he hasn’t been complaining of stress or depression at that particular time. That doesn’t mean that he didn’t have it, he may just have not mentioned it to us. And certainly, chest pain can be a symptom of anxiety and depression. But I can’t say in his case that the chest pain was. Have you got a copy of the letter from Dr Warren? Did he offer any explanation to the diagnosis?
…
… --- And just looking at that now Dr Rod Warren sent a letter and that’s actually address[ed] to Dr Nana [Nanayakkara] and I’ve been copied in. Angiography chest discomfort equivocal stress echo, hepatitis, been in good health, reaction to (indistinct), clinically the heart was normal. Undertaken. Findings exclude significant – yes, he’s just excluded significant ischemia, which is normally what a cardiologist will do, and hasn’t offered an explanation for the pain. Dr Nana [Nanayakkara] has done much the same. …”[44]
[44] Transcript at 174-175. Dr Nanayakkara was a general physician in Shepparton who did a lot of cardiology work. If he is not happy with a patient who has undergone a stress test, he refers that patient to Dr Warren: Transcript at 175.
Dr Hook said that he had no record of being aware in 2002 that Mr Richmond had claimed a pension on the basis of suffering from stress and anxiety.[45] His clinical notes from 20 June 2002, which appears to be his earliest consultation with Mr Richmond, until 8 January 2004 contain no reference to Mr Richmond’s anxiety or to the effect of any condition upon his work. During that period, Mr Richmond consulted Dr Hook in relation to matters such as a cough, worsening tinnitus and hearing, immunisation, headache and neck pain and sciatic pain.[46]
Work and health in 2004
[45] Transcript at 176
[46] Exhibit R1 at 2-4
A. Mr Richmond
For approximately the second half of 2004, Mr Richmond said that he taught for half his time and spent the other half developing online tests in various subjects. Students would tick the box they thought represented the correct answer to the question asked. They could not pass answers on to other students for he developed three separate test banks. Mr Richmond felt that the tests did not test the students’ knowledge because they were simply asked to tick a box. Their knowledge would have been tested had they been required, for example, to say what a part was called rather than to choose one or other of names that were provided to them. The testing process was too “fluffy” in his view. He started doing the tests in the way that he was required to do but developed another test that he submitted for comment. Mr Richmond said that he received no response.
He agreed with Ms Maud that he did not have a high opinion of what others were doing. The system at the Goulburn Ovens TAFE allowed for self-paced learning, he said. That meant that the students could do what they liked at their own pace. One student would take his work home where his mother completed it in pencil and he wrote over her answers in biro the next day. That student learnt nothing. Conducting a class was impossible, Mr Richmond said, because the students were all at different stages. Other teachers did not share his concerns. They just “bumbled along”, he said, as they had industry experience but had not undertaken teacher training. He was trying to teach the kids to be tradespeople and work ethic.
He said that he changed his work because he thought that he could do it from home in Queenscliff where he felt comfortable to do it and there would be less contact with staff and students. The chance to get away from the students was the reason he took up the test bank work rather than his particularly enjoying that work. In 2004, he said that he spent perhaps two or three days each week in Shepparton and the remainder of the week at home. The pattern changed from week to week. Mr Richmond described himself as being anxious, restless, suffering from claustrophobia and angering easily.
In cross-examination, Mr Richmond said that he had not reported the stand-up confrontation he had experienced to his managers. When asked why he had not he replied that the students “went ape” and “went mad”. He just let them go. The behaviour could occur anywhere. It could occur in the theory room. On one occasion when it occurred, he explained to the student what he wanted, the student settled down. Mr Richmond said that he did not report that incident. He believed other teachers had similar incidents.
The tremors from which he suffered affected his ability to demonstrate tip welding. He had to use two hands and could not demonstrate it because of tremors and shakes he was suffering from. Mr Richmond could not recall in which year he had begun to suffer from tremors and shaking although he said that it was after his experience on the Queenscliff pier. In examination in chief, Mr Richmond agreed that, from mid 2004, he suffered from tremors and shaking and could not demonstrate welding as a result. He told Dr Hook about them and tried a couple of different medications to see whether they made a difference. At first, he thought that they did but he gradually deteriorated over time.
Mr Richmond said that there is a relationship between his claustrophobia and his panic attacks but they do not always go together. There was no relationship when the incident on the Queenscliff pier occurred.
When his attention was drawn to a note written on 17 June 2004 by Dr Hook[47] that he was having difficulties with his wife, he replied that maybe he was but he did not realise it. He thought that the situation was the norm but then he realised that perhaps that was not the norm and that not being angry was the norm. His social life was going down. Other than playing golf one day a week, he had no social life in Shepparton. Although he chose to have none, he did not know why that was the case. He did not know if it went that way because he was antisocial, withdrawn and morose.
[47] See [93] below
Mr Richmond was shown Dr Hook’s note on 17 June 2004 recording that he was reducing his alcohol intake. His wife always wanted him to cut back his drinking but Mr Richmond said in giving his evidence that he is comfortable with what he is drinking and is not going to change.
In cross-examination, Mr Richmond agreed that he had given evidence that his anxiety symptoms were increasing over the course of 2004 and 2005. He did not recall seeing Dr Hook on 17 June 2004. Mr Richmond said that he did not know what he had been drinking in 2004 but his wife was always on his back to cut it down. He was getting on better with his wife in 2004. He did not know whether he had reduced his drinking in 2004. He thought that he cut down his drinking to three quarters of a bottle of wine when his wife suffered heart problems.
On 11 August 2004, Dr Hook had noted that Mr Richmond felt better on Zoloft but had to stop taking it because of his increased shakes. When Ms Maud suggested to Mr Richmond that Dr Hook’s note was inconsistent with his evidence that he was on a downward spiral in 2004, Mr Richmond replied that was how he felt; simple as that. He denied that he was looking back and reconstructing events. Looking back is not something that he has to do as he knows what it was like. Mr Richmond agreed that there was nothing in Dr Hook’s notes that showed the he was feeling any worse. The entry in Dr Hook’s notes for 8 December 2004 states that Mr Richmond was feeling much better and his shakes were much better. He agreed that the mood swings and shakes were much better but he did not know whether Dr Hook wrote his notes on the basis of what he told him.
At the time, Mr Richmond said, he was coping with work with a great deal of difficulty. Provided that all was going well, he could handle it and he generally dealt with a classroom of students well. If all was not well, he was anxious and abrupt with the students. He is “not excited” by the thought of resuming teaching work. Factors that make him feel that way are his fears of confrontation, of becoming angry with the students and of his becoming stressed. He would get the shakes if he got on the wrong side of somebody. It was a downward slope in 2004 and the symptoms he was suffering were ultimately the catalyst for his retirement from the Goulburn Ovens TAFE in 2004. Mr Richmond said that his anxiety was the total cause of the difficulties he had with the students. His anxiety affected him so that he could not have a rational discussion with the students.
Mr Richmond said that his depression was like a shadow. It could just come out of nowhere and hit him. He lost weight and libido. Dr Percival gave him stronger medication but Mr Richmond felt that he did not have any rapport with him.
When he saw Dr Carol Newlands, a Consultant Forensic Psychiatrist, in August 2004, Mr Richmond said that he told her about retirement. He had told her because of the deterioration in his condition and had said to her that he always had the chance that he could retire if things got bad. Before that time, he said in giving his evidence, he had not thought much about it.
His conversation with Dr Newlands was explored further in cross-examination by Ms Maud. Mr Richmond agreed that he would have told Dr Newlands about retirement in the following year. It was possible that he was looking at retirement. He agreed that he was hopeful of doing so but had not made up his mind about it. Lots of factors were relevant to his making that decision. They included factors such as how his teaching was going and his eligibility for the pension once he turned 60 years of age. Had he planned his retirement, he would not have taken leave at the end of 2004 and would not have continued to pay rent for the Shepparton house. When Ms Maud suggested to Mr Richmond that he had found that he was not suited to modern teaching, he replied that could have been so or it could have been him.
In early December, he might have talked about it with Dr Hook in case he wanted to go on with it. At that stage, he had not “identified” that he would go on with it. He felt that Dr Hook supported any decision to give up work but Mr Richmond could not remember what he had said to him. An advocate whom he saw on 4 December 2004 had encouraged him to apply for an invalidity pension. At that stage, he had not decided to retire. He was told that he could get the pension earlier but he could not see the difference between a service pension and an invalidity pension. To his mind, he would be eligible because he had accepted conditions and was suffering a downward spiral. If he were to retire, he told his counsellor, he thought that he could claim invalidity pension but did not know the ramifications of that. He thought that the difference between getting a service pension on age grounds and an invalidity pension was that one was taxed at 60 years of age and the other when he turned 65. In either case, it would not be a problem because he and his wife would not have enough coming in to be taxed.
Mr Richmond said that he took an invalidity pension application form home with him but did not get back to Dr Hook immediately. When he did, Dr Hook was on leave until February 2005 from some time in early to mid December 2004. Mr Richmond said that he decided to resign over Christmas 2004. When asked whether anything had happened to make him come to that decision, Mr Richmond replied that he had chest pains and so was not working because of it. He did not know whether he had suffered chest pains over that Christmas break but had them frequently and did not itemise every one of them. Mr Richmond said that he could not go back to the stresses of staff and students and with being irritable and angry with everyone. He thought that he could not go back. As for work with students, he felt that he was “starting to lose it”. The assessment test banks were coming to an end and he would have to go back to 20 hours of teaching each week. He could not bear the thought of that, he said. Mr Richmond said that he would be anxious, stressed and get the shakes so that he could not show the students how to do developmental drawings or demonstrate welding techniques. These skills are critical to the trade and a necessary and integral part of it. As a consequence, Mr Richmond submitted his resignation in about December 2004.
By letter dated 19 December 2004, Mr Richmond tendered his resignation from Goulburn Ovens TAFE with effect from 21 January 2005.[48] He said in giving his evidence that he had chosen that date so that he had a week after returning from leave on 17 January 2005 to download all of his material. Had he not been suffering from anxiety, he said, he would not have retired at that time. So long as he had employment, his intention had been to keep working. Mr Richmond said that he was aware of other trade teachers teaching at TAFE on a casual basis after they were 60 years of age but he was not aware of any who were engaged on a full-time basis. There was no reason why he would be required to stop teaching upon reaching the age of 60 years. Before he became anxious, Mr Richmond said that he had loved teaching and would have worked until he dropped. Had he been able to get work, he would have worked until he was 70 or 75 years of age.
[48] Exhibit R13
On 24 December 2004, the Manager-Organisational Development acknowledged receipt of his letter, thanked him for his time and input and advised him that, apart from the period already approved as leave from 4 to 14 January 2005, he would be paid his accrued annual leave in his final pay. Mr Richmond was invited to complete an Exit Survey to assist Goulburn Ovens TAFE to improve but none was received. Goulburn Ovens TAFE reported in a letter dated 26 November 2012 that it had never received any criticisms or recommendations from Mr Richmond regarding his employment.[49] On 25 May 2007, Goulburn Ovens TAFE responded to a question asked by the Department of Veterans’ Affairs (DVA) advising that Mr Richmond had lost time through ill health between 22 and 31 May 2002 and 3 and 18 June 2002. It was “unsure” of the nature of his illness.[50]
[49] Exhibit R13
[50] T documents; T4 at 11
Mr Richmond denied that he retired because he had decided to move back to the Geelong area because the commute each week to Goulburn had become tiresome for him and his wife. He denied that he wanted to spend more time with his grandchildren and that was a reason for his retirement.
B. Medical evidence
B.1 General practitioner’s notes: April 2004
The first entry in the notes of Mr Richmond’s general practitioner, Dr Stephen Hook, relevant to anxiety appears on 2 April 2004. Omitting the medication he was prescribed, the entries in April 2004 read:
Date
Entry
2 April 2004
“… Loss of incentive. Quite anxious and irritable. At times feels as though could cry. Not … [getting] enjoyment out of things. Actions:
EFEXPR-XR CAPSULE 75mg 1 mane”[51]
28 April 2004
“… Feels better on efexor re anxiety and teariness etc, but tremor. cease efexor. Try Zoloft. Had previous claim for claustrobia relating to 3experience in Vietnam. Denies flash backs. These depression and anxiety only started in the last 3 or 4 years, Action:
Letter written – re. REFERRAL LETTER – PLAIN to DR CHRISTOPHER PERCIVAL.
EFEXOR-XR CAPSULE 75mg ceased.
Prescriptions printed:
ZOLOFT TABLET 50mg 1 daily m.d.u.”[52][51] Exhibit R1 at 4
[52] Exhibit R1 at 4-5
In giving evidence at the previous hearing, Dr Hook said that his first record of Mr Richmond’s suffering anxiety or depression is dated 2 April 2004. He prescribed Effexor but he was not happy with Mr Richmond’s response to the drug. Therefore, he referred him to Dr Percival as he felt that Mr Richmond had quite a serious psychological condition. In giving evidence, Dr Hook explained:
“… I saw him in April 2004, and I wasn’t happy with his condition. He was talking about anxiety, teariness, tremor. He has mentioned a previous claim for claustrophobia relating to experience in Vietnam. He denied flashbacks, anxiety and depression. Yes, he said they’d started in the preceding three or four years back to 2000. And I just felt that due to the complicated nature of the problems, the ongoing situation, he should see a specialist psychiatrist. I referred him to Dr Christopher Percival.”[53]
[53] Transcript at 176
B.2 Dr Percival’s second report: 7 June 2004
Dr Percival saw Mr Richmond on a second occasion on 7 June 2004. After referring to his previous report and its conclusion, Dr Percival summarised the history he was given on that second occasion:
“… [O]n this occasion he gave a somewhat different account of himself, dating his difficulties back some years, and fleshing out his symptomology to a degree that suggests an alternative diagnosis. Essentially he describes himself as becoming increasingly impatient and irritable, more reserved in himself, and less comfortable in groups. At the same time he became increasingly anxious, particularly in situations where he felt he had allowed an element of confrontation with students to develop in his work as a welding instructor with TAFE.
His alcohol consumption increased, and he developed a significant depression of his mood, describing himself as ‘morose’, and the impact of the change on him as being ‘like a shadow’. He experienced occasional suicidal thinking, and describes a diurnal variation in the direction of deterioration as the day progressed. His sleep however was unaffected, as he claims was his appetite, although he concedes that he lost some one stone in weight over a period of twelve months without making any conscious decision to modify his food intake or exercise to this end. His libido declined markedly, but he describes his sense of self-worth and self-esteem as unaffected. The exhibition of tabs Sertraline, in a probable dose of 50mg mane, has resulted in him becoming less morose and less irritable, but has not returned him to his pre-morbid state, and, although he complained of a noticeable tremor, it is not clear whether this pre-dated the exhibition of the Sertraline, and is a symptom of his raised levels of anxiety, or whether it is a side-effect of the drug.
In summary then it now appears that he has probably been suffering from a relatively low-level depression for some ten years, and that the picture of mild claustrophobia that he previously described is in fact a symptom of that illness, a fact which was not recognized at the time of my original assessment of him. In so far as his claim to the Department of Veterans’ Affairs is concerned the situation remains unchanged, that there are no grounds whatsoever for ascribing his condition to his service in Vietnam, but in terms of potential treatability of his condition there are of course obviously different implications in the current diagnosis. …”[54]
[54] Exhibit R1 at 39-40
B.3 General practitioner’s notes: June to December 2004
Mr Richmond continued to consult Dr Hook during 2004. Dr Hook’s notes read:
Date
Entry
17 June 2004
“… Less agitation and anger. esp towards wife. Getting on better. Saw Chris Percival. Not getting flashbacks to war, but thinks about war frequently since decreased drinking.
Actions:ZOLOFT TABLET 50mg changed to ZOLOFT TABLET 100mg
…”[55]11 August 2004
“… Felt better on zoloft. Had to stop because of increased shakes. Try lexapro Actions: Medication/Product Added: LEXAPRO TABLET 10mg 1 daily.
…”[56]8 December 2004
“… Still some anxiety and mood swings. But much better. Shakes much better. … Going to Geelong for 6 weeks.
Actions:LEXAPRO TABLET 10mg changed to LEXAPRO TABLET 20mg
…””[57][55] Exhibit R1 at 5
[56] Exhibit R1 at 5
[57] Exhibit R1 at 5
In giving evidence at the previous hearing, Dr Hook said that he had altered Mr Richmond’s medication because Zoloft 50mg was a very low dose for a man with his symptoms. Mr Richmond felt better on the Zoloft but had stopped taking it because of the side effects. Dr Hook increased the initial dose of Lexapro for the same reason.
B.4 Dr Newland’s report: 30 August 2004
Dr Carol Newlands interviewed Mr Richmond on 23 August 2004 and wrote her report on 30 August 2004. She described Mr Richmond’s experiences in Vietnam where he had been a driver/operator performing, in the main, construction or transport duties as part of a convoy. He told her that:
“Upon seeing their own men maimed and disfigured, it played upon his mind, that he too, had some possible contribution to the human carnage.
However, he explained that he had only seen these men at the Beachcomber Club, wearing hospital pyjamas. Some he felt looked quite unwell, as they had been hurt by claymore mines, and others were amputees.
In reflecting upon things he found distressing besides the above, he stated that there was one occasion when he had chosen to go by himself into Vung Tau, so as to have a haircut. There was something of a commotion, and he came to realize that, “a Molotov cocktail” had been thrown into a local service station. The petrol there, was stored in 44 gallon drums, and as a consequence, these were aflame and “flying everywhere.”
He remembered feeling extremely anxious, wondering how on earth he would get back to base. He stated that he panicked quite a bit, but eventually managed to get a lift with a guy on a motorbike, and paid him to take him back to base.
He described how he recalled seeing Phantom planes, come “screeching in just above ground level”. He recalled seen [sic] the choppers following the “dust-off”, and stated that he felt anxious when on convoys, particularly whilst he was “riding shot-gun”, if a convoy went through small towns. He stated that the people there, would often “glare” at the convoys, and he was constantly expecting that “something might happen”.
However, upon questioning, he denied ever having been fired at or seeing anyone else fired at. He did not see anyone killed or injured. However, he acknowledged often reflecting upon his own role in the war. Indeed, he stated that “there is hardly a day goes by when I don’t recall the past”. He stated that it was “always there”, though he never had any flashbacks as such. ”[58]
[58] Exhibit R4 at [5]
Mr Dixon confirmed that the period was from 26 June to 9 July 2005 and also stated that he offered Mr Richmond employment for the remainder of the year. It was difficult to estimate how much work would have been available but Mr Dixon estimated that it would have averaged out to a day a fortnight, if that. If something unexpected happened, such as a resignation of a staff member, he could have been offered a longer period of work. Mr Richmond declined that offer and also declined any future offers of work. Mr Dixon could not recall precisely what Mr Richmond had said in declining the offer. It might have been to the effect of “Leave it to the younger guys” or something like that. What Mr Dixon did know was that he had the impression that he should not bother ringing Mr Richmond again.
Mr Dixon retired in 2011 and was a casual sessional teacher at the time of the previous hearing in the Tribunal. There are half a dozen or so people whom he knows and who are continuing to teach engineering subjects on a sessional basis even though they are over 60 years of age. Given that TAFEs have a policy of not having all of their staff engaged on a full-time basis, Mr Dixon said that there is always a need for casual staff or staff engaged on a 0.6 or 0.8 part-time basis.
Policy changes over the years, though, Mr Dixon said. In the department in which he was located, Mr Dixon said that they had two full-time teachers and the remainder were either part-time or casual. That has been the case in the last eight years or so. That tendency has arisen because it is difficult to assess class numbers and submissions for funding have to be made before they are known. It is a tendency that Mr Dixon had noticed since the mid 1990s. There have also been changes in steel fabrication, welding and the like. A lot of technological changes have taken place as well as more sophisticated tools such as laser cutters and the like. The educational institutions are looking for teachers with much higher trade qualifications and up to date skills. There has been generational change. Mr Dixon agreed with Mr Purcell’s proposition that, from the 2000s onwards, there has been some discomfort and disquiet amongst teachers in the TAFE system about declining standards both professional and those relating to conduct and behaviour.
At the time, Mr Dixon said, the hourly rate for casual teaching was $49 in 2005. In 2011, the hourly rate was $64.50. Mr Richmond would, at the most, have worked four or five eight hour days in the period between 26 June and 9 July 2005. To be specific, he would have to look up timetables from the period.
C.Medical evidence
C.1 Dr Hook
Dr Hook also wrote the following notes:
Date
Entry
17 February 2005
Mr Richmond asked Dr Hook’s receptionist for a referral to Dr Cronin, a psychiatrist.[72]
18 February 2005
“… Letter written – re. REFERRAL LETTER – PLAIN”[73]
22 February 2005
“… See letters from Geoff. Has found increasing difficulty with stresses at work, and interactions with other people esp students and other teachers. Has got to point where gets easily flustered cant concentrate and feels panicky. Pulse races palps, sweats, feels anxious and has to lewave. reviously has had to walk out on a class, Also worse in small rooms. Feels is suffocating and needs more air. In fact has always had some fear of confined spaces and episodes of anxiety since war. eg, prior to war used to skin dive, after war couldn’t even put on a wet suit let alone go diving. Cant wear anything too tight. Has had to have loose fitting clothes. Seeing psychiatrist nest week. Still on Lexapro .. Sleeping better on these but anxiety and panic no better. Has resigned from work. Found could no longer cope. Could not face going back. Even though of old work pklace brought on panic attack”.[74]
[72] Exhibit R1 at 5
[73] Exhibit R1 at 5
[74] Exhibit R1 at 5 (Reproduced as typed)
Dr Hook’s reference to “See letters from Geoff” is a reference to a letter dated 7 February 2005 set out at […] above.
In giving evidence at the previous hearing, Dr Hook said that, on 22 February 2005, Mr Richmond had obviously deteriorated substantially. He had been having increasing difficulties with stressors at work and interactions with other people; especially students and other teachers. Dr Hook read through the rest of the note he had made on 22 February 2005 and observed:
“… Yes, these are all definitely symptoms of an anxiety situation. And I’ve got a note here that he had an appointment to see the psychiatrist again, so he’s obviously maintained his ongoing visits with the psychiatrist, which is why there’s probably not a lot of reference in my notes over that period of time because he’s been seeking specialist treatment, which I believe is totally appropriate because there’s absolutely no doubt in my mind that he was suffering a severe psychiatric illness, not a mild one. …”[75]
[75] Transcript at 178
In cross-examination at the previous hearing, the following exchange took place between Mr Purcell, who appeared for the Commission, and Dr Hook regarding his part in the sequence of events surrounding Mr Richmond’s decision to retire and the consultation in his surgery on 22 February 2005:
“Did you know at that time that he had ceased working? --- Yes, he stated to me that it was his decision to cease work and he also states that in the letter that he sent me prior to coming back to Shepparton to see me.
So he didn’t cease work because you suggested to him that he cease work, he ceased work and then he asked you to – well, then he went and saw you and gave you all this information? --- That’s correct, yes.
That’s the sequence of events, thank you. You weren’t consulted about his ceasing work? --- No. No.”[76]
[76] Transcript at 194
C.2 General practitioners: various
Mr Richmond attended at an unnamed practice in January 2004 for an unrelated matter and then regularly from 7 April 2005 to 1 August 2006. The first mention made of anxiety or any related condition appears on 9 February 2006 in a note of Dr Stacey Harris:
“A war veteran and having anxiety/depression sx again A while ago was on lexapro for exactly the same, but went off it 6 months ago, thought he was okay
Has a happy life – good, stable marriage, kids, no financial burdens, but is feeling anxious all the time, and getting panic attacks
Upset about the effect it is having on his family
Is going to a PTSD clinic in Geelong for war vets that suffer with this – discussed this would be good to go to
Discussed going back on medication – realises he should, has gone on far too long now
Didn’t like the SE of tiredness on Lexapro – discussed going on another one – prozac good for anxiety
Will come back in 3-4 weeks to see how progress”[77]
[77] Exhibit R2
On 15 February 2006, Dr Harris continued the prescription for Prozac and noted the views of the PTSD clinic. On 7 March 2006, she noted that Mr Richmond was undertaking the PTSD programme. He was doing well on Prozac and did not feel as tense or anxious and did not suffer from the shakes and tiredness as he had on Lexapro. As for his drinking habits, she wrote that:
“Drinking alcohol – ¾ wine bottle per night, cut down to ½ bottle per night. Has been doing this since Vietnam, going to the Tribunal about this because he never used to dri[n]k before going to Vietnam.”[78]
Mr Richmond continued to do well on Prozac when Dr Harris saw him on 23 May 2005.
[78] Exhibit R2
C.3Dr Hales
Mr Richmond moved to Queenscliff with his wife and, in July 2006, requested Dr Hook to transfer his medical records to Dr Hales. The only express reference to anxiety in Dr Hales’ clinical notes between 3 August 2006 and 15 February 2009 appears on 1 November 2006. That reference is to “Anxiety/Depression” and there is a prescription for Zactin recorded on 1 November 2006. A further prescription is written for Zactin on 28 March 2008 when Dr Hales noted that Mr Richmond had stopped taking it following his PTSD course but the symptoms had gradually returned. There are references on 20 February 2007 to a letter written regarding DVA and on 16 May 2007 to a “long medical for VAFF”.[79]
[79] Exhibit R2
Further relevant material prepared after 2005
A.Mr Richmond
On 20 March 2007, Mr Richmond lodged a further claim for an increase in his disability pension. He gave details of the treatment he had received at the Geelong Clinic for PTSD between 15 February 2006 and 4 May 2006 as well as from Dr John Cronin, a Consultant Psychiatrist, in approximately October 2006 and November 2007.[80] Mr Richmond referred to his teaching at the Goulburn Ovens TAFE in Shepparton between 1997 and 2005 when asked for details of his employment history in the previous ten years. When asked how his disabilities affected his employment or ability to seek employment, Mr Richmond wrote:
“Unable to cope – students attitudes, management policies, practices & procedures. No job satisfaction. Frustration.”[81]
[80] T documents; T3 at 5
[81] T documents; T3 at 6
DVA sent Mr Richmond an Employment Questionnaire. Mr Richmond completed it on 9 May 2007 noting that he had ceased employment on 21 January 2005. His last employment was shown as at Goulburn Ovens TAFE. He ceased work because he was:
“- Unable to cope with students attitudes/work ethics, management policies, practices & procedures and occasionally some staff.
- Eligible for service pension”[82]
Mr Richmond expanded upon this later in the questionnaire when explaining why he had ceased employment. Referring to his answer I have just set out, Mr Richmond added: “Effects of what has now been identified as PTSD. – Difficulty hearing – Short concentration/attention span – Became anxious/stressed at times – Lack of motivation or drive – No job satisfaction.”[83] Mr Richmond said that he had last registered or applied for work in April-May 2005 with the Gordon TAFE and in March-April 2007 with Melbourne River Cruises.
[82] T documents; T5 at 13
[83] T documents; T5 at 15
On 19 October 2010, Mr Richmond completed a DVA questionnaire in which he set out, among other matters, the factors that had influenced his decision to resign from Goulburn Ovens TAFE:
“The reason I resigned/retired from my position as Metal Fabrication – TAFE teacher at Shepparton, was due to the fact, that my General Anxiety Disorder and Alcohol Dependency, prevented me from continuing to work and therefore in my opinion, I was totally and permanently incapacitated for work from 21st January, 2005.
My decision to resign/retire when I did, have been ratified by the reports of Dr Stephen Hooks and Dr Peter Hales.
Factors influencing my decision to resign/retire:
*I realised I was having extreme difficulties coping with student work ethics and attitude, found myself in constant conflict with even my own staff and trouble complying to management policies, practices and procedures.
I had even been known to just walk out on classes.
* In 2002 I suffered chest pains.
As an outcome of tests, including an Angiogram, that proved clear, Dr Stephen Hooks and I determined that the pains could be stress related.
*During the Christmas break 2004-2005, I again suffered a panic attack and chest pains.
I thereby concluded that I could no longer tolerate the thought of returning to work, and now thinking back after discussing issues with Dr Strauss during the appeal process at the AAT appeal process on 2 occasions, his diagnosis being Generalised Anxiety Disorder and alcohol dependency, but it seems that these panic attacks and chest pains was part of the GAD symptoms – not co-morbid psychiatric conditions as per se DSM-IV criteria?
As a consequence, I gave written notice during this break, of my intention to retire/resign invalidity, on 21st January, 2005.
I returned to work on or about 17th January, 2005, and finished up work on 21st January, 2005, on the grounds of retiring invalidity due to the fact of suffering psychiatric conditions that prevented me continuing my position as a TAFE teacher in Metal Fabrication and Welding”
….[84]
[84] T documents; T8 at 34
B.Medical evidence
B.1Dr Hook
On 15 June 2011, Dr Hook wrote a letter at the request of Mr Richmond’s advocate. In relation to Mr Richmond’s retirement, Dr Hook wrote:
“… I Concurred with his decision to retire when I saw him in Feb 2005 as I believed he was medically unfit to continue his occupation I did not think it likely he was able to perform ant gainful employment reliably, and regularly. He was unable to word asper above and as per my entries Feb 2005. It was because of his psychiatric problems that I believed he was unable to continue work. Ther were no other medical conditions that prevented him from working.”[85]
[85] T documents; T18 at 88
At the previous hearing, Dr Hook observed that:
“… I mean my overall impression in cases like these where you’re getting a whole lot of different diagnoses thrown around is that the actual diagnosis isn’t the overall important thing, it’s the actual symptoms and what you are doing about them and how is the patient coping. And obviously we’re multifactorial here, we’ve got the probability of post traumatic stress from the Vietnam War. We’ve got alcoholism, which may well have been induced by the war. We’ve got marriage problems. We’ve got difficulty coping at work. All of these symptoms Dr Percival has summarised extremely well. And then you’ve got the ones that I’ve put in there that my overall impression remains that regardless of diagnosis, I think the situation was that this man was no longer coping and the best way of solving the problem was to retire and at least get rid of one of the ongoing causative factors, which was stress from work.”[86]
[86] Transcript at 181
As for Mr Richmond’s tremor, Dr Hook saw it as part of his symptomology but not as his main problem. His main problems were more related to his anxiety and his inability to cope. He would have to talk with Mr Richmond again about the tremor because it might have been a significant thing but he:
“… would have thought that more – the most significant part of his ongoing problems were his increasing anxiety, increasing inability to interact appropriately or at all in many social situations, especially the work situation. The inability of being able to confront even going to work and having to walk out on his class, I’d say they are much more important than any tremor.”[87]
[87] Transcript at 181
Dr Hook’s memory of Mr Richmond was from his notes for he acknowledged that when he was asked if his letter of 15 June 2011 represented an accurate summary of Mr Richmond’s health from April 2004 to February 2005. He said that he had trouble putting a face to Mr Richmond.[88] He confirmed this in the exchange with Mr Purcell:
“Doctor, your evidence is only as good as your notes, isn’t it? --- And my notes clearly state what I’ve just stated then.
Thank you. That was the question. Because you have no independent recollection of Mr Richmond at all, do you? --- I have my notes.
That’s it? --- And my notes clearly state – I have not stated to you anything that I haven’t recorded in my notes.”[89]
[88] Transcript at 182
[89] Transcript at 196
B.2 Dr John Cronin: 13 July 2005
In his first report dated 13 July 2005, Dr Cronin, who is a Consultant Psychiatrist, set out Mr Richmond’s history of service and experiences in Vietnam. He referred to Mr Richmond’s finding the heat and humidity in Vietnam as well as the sand difficult to deal with. As a result, he felt unable to cope, could not sleep readily, felt panicky and short of breath as well as sweating and feeling light-headed accompanied by a need to get out his tent and into the air so that he did not suffocate. Mr Richmond told him of his friend who had been killed while laying mines and of his feeling of vulnerability even though he was in a construction squadron and his friend in a field squadron. He told Dr Cronin of there being an explosion just up the road from the place where he had gone to have a haircut. Forty-four gallon drums of fuel were flying about and he found the situation to be very dangerous. He managed to get back to camp but was very nervy as a result. On another occasion, a land rover hit a claymore mine and six people were killed. Everyone was asked to donate blood and this reinforced the seriousness of the situation for him. Mr Richmond’s drinking increased over the eight months that he was in Vietnam. He would drink at least 15 pots of beer each day and more at weekends. It has taken a long time to wean himself away from alcohol to the extent that he was only drinking three quarters of a bottle of wine each day.
As for Mr Richmond’s work history, Dr Cronin reported:
“… In recent years he has been working as a TAFE teacher in metal fabrication in Shepparton and would spend the weeks in Shepparton and the weekends in Queenscliff. He was working full time but noticed that he was getting grumpy and could not handle the children as well. He was getting no job satisfaction and did not like the changes that were happening in the education system. He changed his duties so that he could reduce his teaching load and took on more administrative duties. He retired from work on his sixtieth birthday.”[90]
[90] Exhibit A3 at 2
Dr Cronin diagnosed Mr Richmond as suffering from a generalised anxiety disorder and alcohol abuse and expressing the opinion that there was a reasonable hypothesis that these conditions had arisen as a result of his operational service in Vietnam.
B.3 Dr Nigel Strauss: 17 May 2006
Dr Nigel Strauss, a Consultant and Occupational Psychiatrist, wrote a report on 17 May 2006 regarding Mr Richmond. He set out the history as Mr Richmond had given it to him and referred to the earlier reports from Dr Percival and Dr Newlands and a report of Dr Cronin dated July 2005.[91] In Dr Strauss’s opinion, Mr Richmond had always had an obsessional trait in his personality. Such people, he said, are prone to reasonably high levels of anxiety or alternatively to depressive conditions. Mr Richmond had done well in his life and had achieved a great deal. When he went to Vietnam, Mr Richmond had no psychiatric history but he would have found his time there distressing. That would have been due, in part, to his personality type and vulnerabilities and Dr Strauss had no doubt that his anxiety levels would have increased while he was there. In order to cope, he drank more alcohol. In Dr Strauss’s opinion, Mr Richmond’s condition did not fit the relevant Statement of Principles as he did not experience severe psychosocial stressors of the sort required.
[91] I do not have Dr Cronin’s report but Dr Strauss summarised its main points as: (1) Mr Richmond did not suffer any psychiatric disorder before going to Vietnam; (2) he had developed generalised anxiety disorder and alcohol abuse; and (3) it is at least a reasonable hypothesis to consider that these conditions had arisen as a result of his operational service in Vietnam: Exhibit R6 at 8.
Dr Strauss then expressed his view that:
“As this man has aged he has found it more and more difficult to cope with his increasing anxiety as is often the case with people who have obsessional traits in their personality. There has been a slow deterioration and in recent years this man has become more depressed and has sought treatment for his various psychological symptoms. The treatment has been partially effective and he should continue to take antidepressants and it has been appropriate that he has done a psychological course in recent months but I do not believe that he had the condition of a post traumatic stress disorder. Rather this man has suffered long term anxiety problems and has coped with his anxiety problems partially by abusing alcohol.”[92]
[92] Exhibit R6 at 9-10
B.4 Dr Michael Epstein: 21 December 2005
Dr Michael Epstein is a psychiatrist who prepared a report dated 21 December 2005. He set out Mr Richmond’s service, professional and personal history. He referred to Mr Richmond’s having problems with his claustrophobia, suffering panic attacks and finding the humidity unpleasant when he was operating the cruise business. Dr Epstein described Mr Richmond’s severe panic attack on the Queenscliff pier in 2001 and the symptoms he had reported to Dr Percival. In 2002, Mr Richmond had experienced breathlessness and chest pain but, following an angiogram, he was found to be clear. Mr Richmond and Dr Hook had wondered whether his symptoms could have been due to depression and anxiety, Dr Epstein wrote. He went on to write about Mr Richmond’s work:
“He noticed he was getting grumpy and could not handle his students as well as he once did. He changed his duties so he could reduce his teaching load and took on more administrative duties.”[93]
[93] T documents; T2 at xxiv
Dr Epstein went on to express his opinion that Mr Richmond suffered mild generalised Anxiety Disorder that appeared to have been contributed to by factor arising from his war service. His condition, however, did not meet the relevant Statement of Principles as he had not experienced a severe psychosocial stressor within the two year period before the clinical onset of his Anxiety Disorder in 1972.[94]
[94] T documents; T2 at xxvi
B.5Dr Hales: 16 May 2007
Dr Hales completed a DVA questionnaire on 16 May 2007. In response to a question seeking his opinion as to the medical conditions that reduced his ability to work, Dr Hales wrote:
“Anxiety + Depressive symptoms despite regular Prozac 20mg medication has a significant ability [sic] to wrok.
regular insomnia, noticeably decreased concentration span, less endurance, lower tolerance to stress.”[95]
[95] Exhibit R2
As for other factors that he considered prevented Mr Richmond from obtaining or performing work, Dr Hales wrote:
“- Age 62, 5 years out of employment.
- lower tolerance to stress. He looked at doing some pleasure boat skippering but the demand for travel & time wouldn’t have been worth the low pay offered.”[96]
[96] Exhibit R2
B.6 Dr Cronin: 6 September 2007
Since writing his first report, Dr Cronin had seen Mr Richmond on 16 November and 7 December 2006. In his report dated 6 September 2007, Dr Cronin expressed the view that Mr Richmond’s ability to undertake remunerative work was affected to the extent that he was not capable of working more than eight hours a week by the following factors:
“… panic attacks, generalised anxiety, depression, irritability, loss of confidence and alcohol abuse.”[97]
[97] Exhibit A4 at 3
As for Mr Richmond’s work, Dr Cronin wrote:
“He worked predominantly as a TAFE teacher but found it increasingly difficult to cope. He always thought he had a fairly young approach to things but he found the younger generation of children to be difficult to cope with. They would not do what he told them and a lot of them seemed spoilt. He did not like their attitude. They were not prepared to work hard. This was particularly important in engineering where there were lots of jobs available, but they were not willing. Their lack of respect for him got to him. He also found that he was having some difficulties with management and some other staff, and he was unable to get things done his way. He managed to keep working until he was 60 when he was eligible for the service pension, but he would not have been able to last much longer.”[98]
[98] Exhibit A4 at 2
Later in his report, Dr Cronin observed:
“… His panic attacks persisted to a lesser degree through his civilian employment but have exacerbated as he approached retirement and faced stressors in the workplace.”[99]
[99] Exhibit A4 at 3
Under the heading “Capacity for Remunerative Employment”, Dr Cronin was asked and answered the following questions:
“1. Has the claimant’s ability to undertake remunerative employment been affected by any disability?
Yes.
2.What are the factors affecting his ability to work?
He suffers panic attacks, generalised anxiety, depression, irritability, loss of confidence and alcohol abuse.
3. If the claimant is currently limited in his ability to work by disabilities, is it more probable than not that the limitation is permanent?
It is more probable than not that the limitation is permanent.
4. Is the claimant prevented from undertaking employment solely because of his psychiatric condition.
Yes.”[100]
[100] Exhibit A5 at 3
B.7 Dr Percival: 8 December 2008 and 2 February 2009
Dr Percival saw Mr Richmond on 2 December 2008. He reported that he had previously seen Mr Richmond on two occasions and summarised his findings. Mr Richmond had asked for an assessment at the instigation of his advocate. Before providing that, Dr Percival asked him to arrange for his advocate to make a formal request for that assessment.[101] That occurred and, on 2 February 2009, Dr Percival wrote a third report. It was focused on whether there was a reasonable hypothesis between Mr Richmond’s service and his subsequent psychiatric condition. In his view, there was not for the criteria in the relevant Statement of Principles for Anxiety Disorder would not be met.[102]
[101] Exhibit R2
[102] Exhibit R2
B.8 Dr Velakoulis: 29 January 2011
Dr Arthur Velakoulis wrote a report dated 29 January 2011. He summarised Mr Richmond’s service and experiences in Vietnam. He had various roles, Dr Velakoulis wrote, including that of construction at Vung Tau, as a driver and as a “shotgun” on various convoys from Nui Dat to various other locations. In his first few months, his role was to clear land, put down concrete slabs, build helipads and build huts.
Throughout his service in Vietnam, Mr Richmond described:
“… an elevated baseline of anxiety and fear associated with a general sense of threat. He states that within the first few weeks of being ‘in-country’, an engineering colleague of his, Ray Deed, was killed during a mining incident. I gather a similar fate greeted another colleague of his by the name of Terry Renham. He recalls specifically feeling that he was ‘the next in line’.
During this period of time he also describes hearing bombardments in the Long Hai Hills which occurred at least twice per week. He recalls being particularly anxious at the potential risks, the reality that he was in the midst of war, and that mortal threats were nearby. His elevated sense of fear and anxiety increased his level of discomfort associated with the intense heat, the humidity, the uncomfortable and enclosed nature of his tent, the difficult living conditions, the lack of privacy and the associated malodorous smells such as that of rotting fish. I gather from previous statements that during this period in Vietnam he felt periodically unable to cope, found it difficult to sleep, felt anxious and panicky, suffered physical symptoms including shortness of breath, light-headedness as well as a strong desire to remove himself from the tent into the fresh air so as not to suffocate. I understand that he had never experienced any such symptoms before. I also understand that he commenced drinking alcohol during this initial period with a view to helping him get to sleep.”[103]
[103] T documents; T11 at 39
Dr Velakoulis reported that Mr Richmond described an intense sense of fear when riding shotgun on the convoys. The sense of fear was associated with potential threats such as gunfire and landmines and a sense that he was not in control. He had a generalised fear of being in Vietnam where he had understood from his training that all Vietnamese wearing black were potential enemies. When he arrived in Vietnam he realised that most local Vietnamese wore black as a matter of course. His sense of threat was heightened as a consequence. The other incident reported by Dr Velakoulis related to the molotov cocktail incident:
“In what Mr Richmond describes as his most significant incident, he states that he was getting his hair cut in Vung Tau when: ‘There was pandemonium in the street. The fuel depot was fifty metres up the road and someone had set-off a Molotov cocktail. It was on fire. I was by myself, unarmed and I wasn’t sure if I would get back alive. The VC was known to be in town. I wasn’t sure if it was an offensive. I shit myself. My heart rate was elevated. I got a ride back in the end with a Vietnamese on a motorcycle.’ I understand that during this incident several 44 gallon fuel drums were catapulted into the air as a result of the explosions. Although he returned back to base safely, he was particularly shaken by this incident and its capacity for mortal threat.
In the subsequent months of his tour in Vietnam, the veteran denies that he was fired upon, mortared, or faced with any other specific threats. He does though describe an ongoing sense of fear and anxiety, which remained difficult to control without alcohol. He returned from deployment in December 1967 and was eventually discharged from the army in February 1968, angered by industrial action and student protests which were present at the time of his return.”[104]
[104] T documents; T11 at 40
Dr Velakoulis reported on the ongoing symptoms reported to him by Mr Richmond:
“Since his return from Vietnam, the veteran describes symptoms consistent with a general elevation in his base line anxiety levels, which remain high to this day. In association with this he also describes periodic intrusive dreams as well as daytime re-experiencing of Vietnam related themes. In relation to his intrusive dreams, he states that he wakes each two to three nights with significant shortness of breath which is associated with both Vietnam and non-Vietnam dreams. In regards to his service related dreams, I gather the themes relate to aspects of the experiences he encountered, as well as other themes such as being trapped, coming across mines or booby-traps, seeing his comrades in greens, being killed whilst laying mines, as well as dreams related to the constant risks of mine clearing duty. He also experiences other anxiety related dreams, which are not Vietnam specific that he describes as “weird”. These include incidents such as skiing without boots, floating in the air anxiously or launching himself from a height. He regularly wakes in an anxious state at about 2am in the morning as a result of these dreams. The veteran also describes both psychological and physiological reactivity associated with reminders of Vietnam.
He gets quite distressed when viewing television shows regarding war, seeing things such as bamboo spikes, media stories relating to war atrocities and even emails relating to violence. As a result he tends to avoid a variety of television shows, newspaper reports, confined spaces, hot climates as well as other potential reminders of his service. There is also evidence of regular attempts at cognitive avoidance.
During the day, the veteran often finds himself drifting into ruminant thought related to Vietnam, such as seeing limbless veterans sunning themselves outside the hospital ward in Vietnam, thoughts of an injured man who was hit by a mine, as well as thoughts of local Vietnamese civilians pushing themselves along on a ‘skateboards’ to get around town. He regularly attempts to push such thoughts away, often without success.
In regards to his social relations and relationships with his family, he describes himself as a ‘cold person with limited empathy’, and in terms of these interactions there is evidence to suggest psychological numbing. Comorbidily [sic], he has also described a variety of hyperarousal symptoms, which include an exaggerated startle response, periodic irritability and poor sleep.”[105]
[105] T documents; T11 at 40
He then turned to the severity of Mr Richmond’s symptoms:
“… [T]he first onset was in the months and years after 1967 during which time his symptoms rapidly peaked around 1970, subsequently fluctuating for several decades until the last five or ten years, during which time they have mildly diminished.
…
In regards to comorbid symptoms, he describes periodic mild depressive symptoms over the years, although he denies any significant periods of despondency, suicidal ideation, significant loss of appetite, loss of weight or anhedonia.”[106]
[106] T documents; T11 at 41
Mr Richmond’s alcohol intake was also addressed by Dr Velakoulis:
“In regards to his alcohol intake, the veteran was consuming minimal amounts prior to his Vietnam service, in the realm of 4 to 6 glasses of beer per week typically only during football season. By contrast, his intake escalated markedly in the first few weeks of his tour of Vietnam and in the context of his claustrophobic symptoms whilst living in tents in the sand hills. He describes a regular routine of going to the ‘boozer’ where he was drinking at least 6 to 8 cans of heavy beer each day and far more on weekends. On his return from Vietnam his intake remained at more than 6 cans of heavy beer per night, with binge episodes on weekends. His intake remained high until 2002, as he states his ‘wife was on his back’, and since that time he has typically consumed 4 to 5 standard drinks daily. Over the period of treatment since 2009, his intake has typically involved half to three quarters of a bottle of wine. He describes no alcohol free days on any regular basis, and also states that his longest abstinence over the last four years has been a three day period. Despite this high level consumption, he denies any physical or forensic sequelae associated with his excessive alcohol intake.”[107]
[107] T documents; T11 at 41
Mr Richmond explained that he had suffered his first panic attack when he arrived in Vietnam on 5 April 1967 and was confronted with “the heat, stench and the confined tent”. The frequency and intensity of his panic attacks escalated in the 1970s and have gradually declined since that time. In 2011, Mr Richmond reported that he was suffering from a panic attack once every two or three weeks. His panic attacks cause him to suffer:
“… intense physical symptoms such as feeling hot and sweaty, tremor, shortness of breath, muscle tension as well as multiple cognitions including thoughts of getting out immediately or fears that he is ‘going crazy’. It would seem these anxiety escalations reach the level of panic …. He describes the frequency and intensity of such panic episodes as escalating in the early 1970’s and gradually declining since that time, such that he currently suffers an episode each 2-3 weeks. Although his baseline anxiety levels have been high, he denies significant rumination about his future, his health, his family or finances and although he describes muscle ‘tenseness’ on a constant basis, he denies any associated muscle soreness or other physical sequelae.”[108]
[108] T documents; T11 at 41
In Dr Velakoulis’s opinion, Mr Richmond is suffering from PTSD and alcohol dependence. With relation to the former, he described Mr Richmond’s symptoms which, he said first occurred in the post-Vietnam period, reached a plateau for several decades and had mildly diminished in the previous five years. Mr Richmond suffers periodic panic attacks associated with his PTSD. He considered PTSD and alcohol dependence to both be attributable to Mr Richmond’s military service in Vietnam. Dr Velakoulis completed DVA’s Psychiatric Impairment Assessment Form where he noted that these conditions had no significant effect on his daily living and, although anxious and irritable at times, led to no significant current difficulty with family matters. With work, Dr Velakoulis marked the box “Long periods (weeks or months) of absence from work.” and added the comment:
“The veteran retired in 2005, but it would seem that his work capacity and career trajectory had been affected by his combined anxiety and alcohol related symptoms, leading to reduced frustration tolerance and capacity to deal with class behaviour and his own emotions had been affected by his combined anxiety and alcohol related symptoms, leading to reduced frustration tolerance and capacity to deal with class behaviour and his own emotions.”[109]
[109] T documents; T11 at 46
I certify that the one hundred and fifty four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ……[sgd]........................................................
Associate
Date of Hearing 31 March 2015
Date of Decision 28 August 2015
Counsel for the Applicant Ms F Spencer
Solicitor for the Applicant Mr M Jorgensen
Williams Winter
Counsel for the Respondent Ms Z Maud
Solicitor for the Respondent Mr D Brown
Australian Government Solicitor
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