Robert Young v Repatriation Commission
[2006] AATA 448
•24 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 448
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS’ APPEALS DIVISION ) N2003/1989 )
Re ROBERT YOUNG Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger - Senior Member
Dr J Campbell - MemberDate24 May 2006
PlaceSydney
Decision The decision under review is affirmed.
Ms G Ettinger
Senior Member
CATCHWORDS
Veteran – PTSD accepted as war-caused – serious injury to left hand in industrial accident – ganglion right wrist – non return to work post operatively – dismissal – intention to retire to receive war pension expressed to rehabilitation provider - capacity of Veteran for work not impacted by PTSD alone – no loss of earnings due to war-caused disability - pension not payable at the special rate – decision affirmed.
Veterans’ Entitlements Act 1986 ss 19, 23, 24
Jackman v Repatriation Commission [1997] FCA 564
Chambers v Repatriation Commission (1995) 55 ALD 207
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Alexander (2003) 75 ALD 329
Forbes v Repatriation Commission (2000) 171 ALR 131
Cavell v Repatriation Commission (1988) 9 AAR 534REASONS FOR DECISION
24 May 2006 Ms G Ettinger – Senior Member
Dr J Campbell - Member
BACKGROUND
1. Mr Robert Young is a veteran aged 57, who served in the Australian Army on operational service in Vietnam during 1970/71. He was under 65 years at the date of application, having worked in his last position at Nupress Tools Pty Ltd for 24 years until he was terminated in 2001. Mr Young sustained a very serious accident in 1977 in which he lost most of his left (non dominant) hand, leaving him only with a part of his hand, and a functional thumb. Following the accident, he taught himself to operate a lathe, and continued with that work at Nupress for 24 years.
2. Mr Young had surgery to his right wrist to remove a ganglion in June 2000, but found that when he attempted to return to work, the setup had changed, welding had changed, and that he was unable to hold the tools. He also expressed fears regarding damage to his one remaining intact hand, and expressed, to his rehabilitation counsellor, his desire to retire, and obtain a service pension.
3. Mr Young has a number of accepted war-caused disabilities including, relevantly, post traumatic stress disorder (“PTSD”). He is a heavy drinker and in 2002, after leaving Nupress, attended St John of God Hospital as an in-patient for three weeks in relation to his drinking, and what he now recognises as PTSD.
4. We were satisfied that Mr Young is a witness of truth. However, we were mindful that the matter has come to hearing more than a year after the application was lodged, and that the majority of the medical reports upon which we were asked to rely dated back to 2004. Accordingly we gave the parties the opportunity of having the Applicant re-examined to update his medical reports. Mr Colborne who represented Mr Young wrote to the Tribunal on the day following the hearing on behalf of both parties to indicate that both were content to have the Tribunal decide the matter on the available evidence. We have been able to do so, because we had extensive oral and written evidence from the Applicant himself, and psychiatrists Drs Dinnen and Roberts, as well as concurrent evidence given by Drs Anderson and Harvey-Sutton who are both occupational physicians.
ISSUE BEFORE THE TRIBUNAL
5. The Tribunal had to decide whether Mr Young was eligible for pension at the Special Rate pursuant to section 24 of the Veterans Entitlements Act 1986, (“the Act”), during the assessment period, (commencing on 4 September 2001, and concluding on the day the Tribunal made its decision, 24 May 2006).
6. That included deciding:
· whether Mr Young’s incapacity from war-caused injury or war-caused disease was 70% or more; and
· whether Mr Young is totally and permanently incapacitated, that is, is his incapacity from war-caused injury or disease of such a nature of itself alone, as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week; and
· whether Mr Young is by reason of incapacity from that war-caused injury or disease or both, alone, prevented from continuing to undertake remunerative work that he was undertaking, and is, therefore suffering a loss of salary, earnings or wages, that he would not be suffering if he were free from that incapacity.
7. We noted that the parties were not arguing the applicability of section 24(2)(b) of the Act, and we have not considered it in relation to Mr Young.
FACTUAL BACKGROUND
8. The general facts were not in dispute. Mr Young was born on 12 October 1949, and served in the Australian Army in Vietnam from 22 April 1970 until 9 December 1971.
9. Mr Young has the following accepted service-related disabilities:
· Bilateral sensorineural hearing loss and tinnitus
· Peripheral vascular disease
· Gastro-oesophageal reflux disease
· Post Traumatic Stress Disorder
· Osteoarthrosis of the left ankle
· Hypertension (T19)
10. Mr Young has the following non-accepted service-related disabilities:
· Chronic sinusitis
· Allergic rhinitis
· Other vitreous opacities
· Foot problems – Tinea NIF
· Localised osteoarthrosis affecting both knees
· Localised osteoarthrosis affecting both ankles and feet
11. We noted that Mr Young also suffers ischaemic heart disease and has been seeking treatment during the course of preparation and hearing of this matter.
12. At the hearing we had in evidence before us documents, (the “T-Documents”), (Exhibits R1 & R2), lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the various other documents tendered by the parties.
CONSIDERATION OF THE ISSUES
statutory framework
13. The relevant legislation in this case, is the Veterans Entitlements Act 1986, and the standard of proof is that of reasonable satisfaction of the Tribunal pursuant to section 120(4) of the Act, guided by commonsense, with an eye to reality, as advised by Tamberlin J in Jackman v Repatriation Commission [1997] FCA 564:
“The AAT had to determine, to its reasonable satisfaction, whether the applicant’s war-caused disabilities were the only reason for him not being in remunerative employment. Burchett J in Cavell stated that this determination is not to be made upon ‘nice philosophical distinctions’, equally it is not to be made upon complex calculations of the probability that an intervening event may have occurred. The approach is to be guided by commonsense with an ‘eye to reality’.”
14. Eligibility for pension at the special rate is dealt with pursuant to section 24 of the Act. Mr Young was under 65 years at the date of application on 4 September 2001.
15. Section 24 specifies three criteria that a veteran must meet in order to be entitled to the Special Rate of pension.
“Special rate of pension
(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
…and
(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
(d) section 25 does not apply to the veteran.
(2) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”
16. The assessment period is from 4 September 2001, the date on which Mr Young lodged his application to the date of the Tribunal’s decision, 24 May 2006 (Forbes v Repatriation Commission (2000) 171 ALR 131), (section 19(9) of the Act).
Application of section 24(1)(a) -Is Mr Young’s incapacity from war-caused injury or war-caused disease 70% or more?
17. To satisfy the tests in section 24(1)(a)(i) of the Act, requires that the Veteran’s degree of incapacity, assessed in accordance with GARP, must be a minimum of 70%. We noted that the Veterans Review Board decided on 27 October 2003, that effective 4 June 2001, Mr Young’s rate of pension should be 100% of the General Rate. We were accordingly satisfied that Mr Young’s rate of pension was above the 70% required to meet the conditions in section 24(1)(a) of the Act.
18. We were mindful that there was some difference of opinion regarding whether Mr Young suffers PTSD. We accepted that Mr Young suffers PTSD which is war-caused, but have referred to the medical reports before us in relation to PTSD for the sake of completeness. The earliest mention of PTSD in medical reports before us was by psychiatrists Dr A Murray dated 28 May 1996, and by Dr Darcy, whose report was dated 3 September 2001 (T9). Dr Murray opined that it would be difficult to substantiate a claim on the grounds of psychological distress or a diagnosis of PTSD, and commenting on the industrial accident Mr Young suffered, Dr Murray stated that “… would rival his military experience in its intensity of traumatic impact on his life.” Dr Darcy referred to certain symptoms, and concluded that “Mr Young’s symptoms of sleeplessness and recurring memories of frightening situations during the war do seem to be due to a Post Traumatic Stress Disorder which has arisen out of his war service.”
19. Psychiatrists Drs Dinnen (Exhibits A2 and A3), and Roberts (Exhibit R9, R10 and R11), also produced reports regarding Mr Young’s psychiatric state as well as giving oral evidence before us. Dr Dinnen was satisfied that Mr Young suffers war-caused PTSD. Dr Roberts in his report of 1 June 2004, stated in relation to the mental state examination he conducted of Mr Young: “ … in terms of his mental status namely his mood, his affect, his thoughts both in form and content and cognition all were within normal limits aside from when he spoke about the incident involving the accidental shooting of his colleague in Vietnam when he displayed some agitation and emotionalism.” Dr Roberts acknowledged one of Mr Young’s accepted conditions is PTSD, but stated that he considered “that there is considerable doubt as to whether Post-traumatic stress disorder in fact exists or has ever existed in this man.”
20. We noted also that in 2002, Mr Young attended St John of God Hospital as an in-patient for three weeks for his alcohol related and other problems, and emerged having been diagnosed as suffering PTSD. His evidence was that he was told first by the doctors there that he was suffering PTSD.
21. We have accepted that Mr Young’s incapacity from war-caused injury or war-caused disease was 70% or more at the relevant date, in satisfaction of 24(1)(a) of the Act, and that he is suffering PTSD which is war-caused. We accepted that he had been assessed at 100% of the general rate.
Application of section 24(1)(b) of the Act – Is Mr Young totally and permanently incapacitated, that is, is his incapacity from war-caused injury or disease of such a nature of itself alone, as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week?
22. To satisfy the conditions in section 24(1)(b) of the Act, the Veteran must be totally and permanently incapacitated, that is to say, the Veteran’s incapacity from war-caused injury or war-caused disease, or both, must be of such a nature as, of itself, alone, to render the Veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
23. In order for Mr Young to be eligible for pension at the special rate, he also had to satisfy the tests in section 24(1)(c) of the Act. Accordingly, we have to be satisfied that he has by reason of the incapacity from his war-caused injury or illness alone, been prevented from undertaking remunerative work that he was undertaking, and has by reason thereof, suffered a loss of earnings that he would not have suffered or be suffering if he were free of his PTSD and other accepted service related conditions.
24. We were mindful that to consider Mr Young’s eligibility for pension at the special rate, the approach of the Full Court of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1 is to be taken. There the Court indicated that the issues before the Tribunal were:
“1.What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
25. FIRST FLENTJAR QUESTION Turning then to Flentjar (supra), we considered the relevant remunerative work which Mr Young was undertaking within the meaning of section 24(1)(c) of the Act.
26. In applying the tests in section 24(1)(b) of the Act, we were mindful of section 28. As relevant section 28 follows:
“Capacity to undertake remunerative work
In determining, for the purposes of paragraph 23(1)(b) or 24(1)(b), whether a veteran who is incapacitated from war-caused injury or war-caused disease, or both, is incapable of undertaking remunerative work, and in determining for the purposes of section 24A whether a veteran who is so incapacitated is capable of undertaking remunerative work, the Commission shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the veteran;
(b) the kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake; and
(c) the degree to which the physical or mental impairment of the veteran as a result of the injury or disease, or both, has reduced his or her capacity to undertake the kinds or remunerative work referred to in paragraph (b).”
27. We considered Chambers v Repatriation Commission (1995) 55 ALD 207 in regard to section 28(a) of the Act. We were mindful that Chambers (supra) was a decision of the Full Federal Court, in which their Honours considered section 28 of the Act, and held that neither the Judge at first instance, neither the Tribunal had erred. Their Honours stated at paragraph 38:
“Section 28 gives directions concerning the matters to which the Commission must have regard in determining, for the purposes of s. 23(1)(b) and s.24(1)(b), whether an incapacitated veteran is incapable of undertaking remunerative work. Section 28(a) also directs that only the three specified matters are to be taken into account in making the determination. In this respect the section is exhaustive: Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 …”
28. We were mindful further that their Honours in Chambers (supra) commented that the authorities strongly supported the view that a narrow approach was not to be taken as to the construction of sections 28(a) or (b). Their Honours said, referring to the Second Reading Speech in relation to the 1985 amendments to the Repatriation Act 1920, at paragraph 56 of the decision, that: “… there is nothing in the Minister’s comments suggesting an intention that the language in s.28(a) should be construed narrowly. On the contrary, the Minister observed (at 2646) that the special rate of pension ‘was designed for severely disabled veterans of a relatively young age who could never go back to work and could never hope to support themselves or their families.’ ”
29. We noted in regard to section 28(b) of the Act, that the Tribunal must consider what type of remunerative work the Applicant might undertake, mindful that the state of the labour market cannot be taken into account. (Chambers (supra)). That is, we were mindful that we could take into account Mr Young’s vocational, trade and professional skills, qualifications and experience, the kinds of remunerative work which a person with his skills, qualifications and experience might reasonably undertake, and the degree to which his accepted physical impairments or PTSD has reduced his capacity to undertake that remunerative work, but not extraneous factors.
30. In considering section 28(c) of the Act, we had to disregard Mr Young’s non-accepted disabilities, and consider to what degree Mr Young was incapacitated for work by his war-caused disabilities during the assessment period.
31. By way of background we noted that in 1970, on joining the Army, Mr Young trained for nine months before being sent to Vietnam where he was a radio operator in gunnery. In his statement dated 27 April 2004, (Exhibit A1), Mr Young detailed the many positions he has held since leaving the Army. His main employer with whom he worked for 24 years from 1977 until he was terminated in 2001, (although he said that officially he was made redundant), was Nupress Tools Pty Ltd. Mr Young told us that he commenced there as a pick-up and delivery driver, and when the owner recognised he was a good worker, he was put on full-time, doing welding and delivering goods.
32. We were mindful that on 27 September 1977 Mr Young sustained a very serious accident to his left (non-dominant) hand while at work at Nu-Press, which left him with an operational thumb but in which he lost most of his left hand. He returned to work on light duties in February 1978, and continued with delivery work until 1982. He told us that he taught himself to operate a lathe and continued with that work for 24 years.
33. Mr Young said that a ganglion developed on his right wrist in June 2000 for which he underwent surgery, and when he attempted to return to work, the set-up of welding had changed, and the tools were too heavy for him to hold. He also expressed fear of damaging his only good hand, his right hand.
34. Mr Young also told us about excessive drinking and other anti-social behaviour which caused Nupress to isolate him in his own workshop. He said that working with other people caused him stress. However we did not accept the evidence of Dr Harvey-Sutton who said that Nupress had taken Mr Young on for life after the accident, and provided him with a “sheltered workshop”. We were mindful of the evidence that Mr Young taught apprentices, and that he made a valuable contribution to the work of Nupress. In fact it was Mr Young’s own evidence that he became frustrated when others in the company could not produce materials he required for his work quickly enough. We noted that on one occasion he struck an apprentice because he became annoyed with his performance.
35. At T20 there was a letter of Mr S Kamprad, Administration Manager of Nupress dated 11 March 2003 documenting that Mr Young ceased employment with Nupress on 27 June 2001, and commenting that after the operation to remove the ganglion, “Mr Young did not regain strength or usefulness of the wrist and was unable to continue his duties at Nupress Tools, even with the modifications to his work environment. It was for this reason that his employment was terminated.”
36. We were mindful that the parties agreed, and we accepted that the relevant remunerative work which Mr Young was undertaking was work of a manufacturing or engineering nature as well as a welder and delivery driver. We noted also that he trained apprentices while at Nupress.
37. SECOND FLENTJAR QUESTION In approaching the second question in Flentjar (supra), we had to ascertain whether Mr Young, was, by reason of his war-caused injuries or disease, or both, prevented from undertaking that work.
38. Mr Colborne acknowledged in his submissions that Mr Young had given physical reasons for his inability to work, such as the new welding equipment at Nupress, problems with his legs, and fear of damaging his intact hand. However it was Mr Colborne’s submission that Mr Young did not realise it was the PTSD which caused his difficulties, and that a mere ganglion operation could not have kept him off work for such an extended period. Mr Colborne submitted that both Drs Harvey-Sutton and Anderson considered that the ganglion did not explain the termination of employment, and that Mr Young retained the physical ability to work. He submitted that Dr Harvey-Sutton said that the PTSD was the only real explanation for what had happened.
39. Mr Doube who appeared for the Repatriation Commission, referred to the cases of Repatriation Commission v Hendy (2002) 76 ALD 47 and Repatriation Commission v Alexander (2003) 75 ALD 32 with regard to contribution from non-service related injuries or disease in regard to eligibility for special rate pension. He submitted that in Mr Young’s case, there was a contribution from factors other than the service related ones, and that unless Mr Young’s accepted conditions, alone, caused his inability to work and his loss of earnings, then his claim must fail. In support of his submissions, Mr Doube submitted that Mr Young suffers significant physical complaints including, amongst others, joint problems with his hips, back and knees, and a history of drinking, and that he ceased work at Nupress due to physical problems. He further submitted, relying on Dr Roberts’ opinion, that Mr Young’s PTSD is relatively minor and would not of itself, prevent him from engaging in remunerative work.
40. We noted the written and oral submissions of the parties, and evidence of Mr Young, and further considered the medical evidence in deciding whether Mr Young’s incapacity from war-caused injury or disease is of such a nature of itself alone, as to render him incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
41. In regard to Mr Young’s psychiatric problems, we noted that he consulted Ms L Lawson, a psychologist of the Vietnam Veterans Counselling Centre, and saw her every three weeks from approximately 1994, escalating that to weekly after the 2000 ganglion episode.
42. Mr Young told us that after he left Nupress, Ms Lawson recommended he attend St John of God Hospital for his drinking, and his psychiatric problems. He was admitted there for three weeks from 15 July 2002, and said in his statement that he was “surprised to learn just how bad my problem had been and the way that my thought patterns were heading.” (Exhibit A1, para 28). Dr Reinhardt of St John of God Hospital diagnosed severe and chronic PTSD and advised that Mr Young that he was not able to work.
43. We noted that Dr Darcy who, in September 2001, diagnosed Mr Young’s PTSD arising out of his war service, mentioned Mr Young’s work, but did not comment how Mr Young’s non-return to work after the ganglion operation related at all to the PTSD.
44. Dr Dinnen told us that he was not surprised when he heard that Mr Young felt worse once PTSD had been diagnosed. He said that this was predictable because the issue had previously been suppressed, and once Mr Young knew what was wrong with him, things were different. Dr Dinnen willingly accepted Mr Young’s statement that since he had not seen doctors for two years, he was feeling better, stating that he, (Dr Dinnen), did not discuss their PTSD with his patients during the course of their treatment
45. Dr Dinnen emphasised that notwithstanding there were doctors who were sceptical about delayed onset PTSD, he accepted the phenomenon, opining also that it was described in DSM-IV.
46. Dr Dinnen also commented in his report (Exhibit A2), on the rehabilitation counsellor’s report, (which dealt with Mr Young’s physical disabilities, and documented Mr Young’s stated intention to leave work and obtain a service pension, and in which his fear of losing the use of his intact hand is discussed). Dr Dinnen stated that this “discloses nothing other than the lack of awareness of this counsellor for the importance of psychological factors in this patient’s inability to work.” He asked why it was one would think that a relatively minor problem such as that Mr Young had with the ganglion on his right hand, would prevent the Veteran from working when he had worked some 24 years with the major injury to his left hand.
47. Dr Dinnen also opined that effective work was inconsistent with patients who suffered psychiatric illness, citing however patients with chronic psychiatric illness being at work for prolonged periods, with their performance dependent on the particular illness and its severity.
48. In his report at Exhibit A1, Dr Dinnen stated that from all the evidence before him, including the interview with Mr Young, and the reports of Drs Darcy, Reinhardt and Burke, he concluded that Mr Young has been unable to work because of his chronic psychiatric illness since, or even before the time he was retrenched from his job. He wrote: “The fact he had an injury which led to the cessation of work in my view is irrelevant, with regard to the overwhelming evidence of the chronic and debilitating effects of his post traumatic stress disorder. One would not expect an operation for a ganglion to cause months and months of incapacity.”
49. Mr Colborne also made submissions supporting Dr Dinnen and Dr Harvey- Sutton’s opinions that Mr Young suffers chronic pain syndrome, submitting that this was a manifestation of his PTSD, and did not constitute a separate illness in this case. We are mindful that this is a separate condition in the DSM-IV, and was not a condition accepted as war-caused, so that if indeed Mr Young does suffer chronic pain syndrome which has caused incapacity to work, then it is not his accepted war-caused conditions alone which prevent him being able to work, and he does not satisfy the tests in section 24(1)(b) of the Act.
50. Dr Roberts commented that Mr Young has PTSD accepted as a war-caused disability, but that there was considerable doubt as to whether PTSD exists or has ever existed in Mr Young, but that if it was accepted that he had it, then it would be of the most minimal degree. He was also sceptical of Mr Young’s treatment at St John of God Hospital, stating that there was little evidence that in-patient treatment was beneficial for PTSD. He was also sceptical of Mr Young’s evidence that he did not know he had PTSD until it was diagnosed there in 2002. People do not have to be told they have PTSD, he commented; they tell you! He also said that the level of social activities in which Mr Young was able to participate was inconsistent with an inability to work.
51. Dr Roberts commented in both his written and oral evidence that Mr Young exhibited neither evidence of heightened inappropriate anxiety, nor avoidance of contact regarding Vietnam, as might be expected, manifested by his continuing contact with veterans’ organisations and social activities. He added that there was no evidence to suggest that psychiatric factors were involved in Mr Young ceasing work.
52. When asked to comment on Dr Dinnen’s view that Mr Young was suffering chronic pain syndrome, Dr Roberts explained that the latter had a separate classification in DSM-IV, and that, taking into account his activities, it was highly improbable Mr Young suffered chronic pain syndrome.
53. Dr Harvey-Sutton and Dr Anderson gave concurrent evidence before the Tribunal. Dr Harvey-Sutton opined that Mr Young was able to maintain his employment with Nupress, who had to keep him as a condition of the workers compensation settlement, only because of that agreement, and because Nupress tolerated his temperament. She accepted that he worked well, but referred to the employment as “sheltered”. Dr Harvey-Sutton opined that Mr Young’s inability to learn the new techniques and continue with his employment when the welding techniques changed to high tensile welding after his ganglion operation, was due to his PTSD. We have already said above that we were not satisfied from the evidence before us that Mr Young was working in a sheltered workshop situation at all. We were mindful however of Mr Young’s evidence that the new welding equipment was physically too heavy for him to handle, rather than that he had been unable to learn the new techniques. We accordingly did not accept Dr Harvey-Sutton’s opinion as described above.
54. We noted what Mr N Clair, the managing director of Nupress stated in a letter dated 26 July 2001 (T19). He described how Mr Young liked to be isolated, but that it was necessary for him to interact with the rest of the employees, and that this caused some problems. He added however that Mr Young was an excellent timekeeper, competent at his job, and a good worker at all times. He added “He actually responded very well when the pressure was on, and could be trusted to work whatever overtime was needed to get jobs out on time. We could be confident of a quality product being produced on time.”
55. Dr Harvey-Sutton also opined that whilst not a psychiatrist, she is qualified to determine fitness for work in relation to emotional and behavioural disorders and psychiatric conditions. In that regard she commented that although Mr Young may have appeared jovial, pleasant and friendly to Dr Anderson, she gained the impression in her three hour interview, that he may have been superficially thus, but that if “crossed” or in any way challenged, he could be verbally aggressive and abusive, and that he exhibited behaviour consisted with his condition of PTSD. In her oral evidence, Dr Harvey-Sutton’s evidence corroborated that of Dr Dinnen, that Mr Young suffered pain as a somatisation of his PTSD. We did not accept Dr Harvey-Sutton and Dr Dinnen’s opinions about pain syndrome, and were mindful that this had first arisen in medico-legal assessments, further that pain syndrome was a separate category in DSM-IV.
56. When asked about Mr Young’s non-return to work after the ganglion operation, Dr Harvey-Sutton opined that she did not get the impression the Applicant had left work to improve his pension payments.
57. Dr Anderson In Exhibit R12, wrote that from a physical point of view, Mr Young was easily fit to return to his last occupation and suggested a graduated return to work would be indicated. He opined: “I can see no reason why he would not be able to get back to full duties.” In a later report (Exhibit R14), Dr Anderson acknowledged that he had not been fully aware of the new welding systems, and realised later that this may have created difficulties for Mr Young. He added however in his oral evidence that Mr Young had been training apprentices and would be able to continue doing that, or be self employed doing welding repairs. Dr Anderson also remarked upon Mr Murray Clair’s comments (Nupress) regarding the fears Mr Young holds for damage to his remaining intact hand, and understood that may be the reason Mr Young did not return to work after excision of the ganglion.
58. As to the PTSD, Dr Anderson remarked that:
“… he was able to talk quite comfortably about a lot of military and Vietnam activities. Throughout the assessment he was jovial and cheerful. It was also rather interesting that he very proudly wore his Vietnam medal ribbons on his left chest on his denim bomber jacket. It also had the words ‘Australia Vietnam Veteran’ located above them (If he really was trying to forget, it would seem unusual that he would go to this trouble to identify himself as a Vietnam veteran!).”
59. Dr Anderson confirmed in his oral evidence that people with PTSD would avoid the RSL and Anzac Day, which Mr Young did not. Dr Anderson also told us notwithstanding he is an occupational physician, he worked as Chief Medical Officer with the Police for five years and had seen many patients with PTSD. He repeated that unlike Mr Young, they did not present as cheerful people.
60. Dr R Burke, an occupational physician prepared a report dated 16 June 2003, (T20). Dr Burke reported that Mr Young suffered pain in his left ankle due to osteoarthrosis, referred to Mr Young’s excessive alcohol intake, mentioned that his right wrist was improved in function as compared to the time Mr Young was ceasing work in 2001, and the PTSD. He concluded that: “In my opinion he does not have the ability to sustain himself at work and this is related to the post traumatic stress disorder, the peripheral vascular disease and left ankle pain.”
61. Dr T Best, orthopaedic surgeon, performed an operation to remove the ganglion from the back of Mr Young’s right wrist on 24 August 2000 (Exhibit R2/81). He examined Mr Young again on 23 January 2001, commented on his right knee, and concluded by saying that: “In view of the early degenerative change in the wrist I have suggested that he should not continue his work as a welder….”
62. Dr D Millons who is a surgeon, had reports dated June 2004 and January 2005 which were Exhibits R3 and R4 before the Tribunal. Dr Millons commented that notwithstanding Mr Young has problems with various parts of his anatomy, and the injury to his left hand, the excision of the ganglion on the right wrist in 2000 had been successful. He concluded that there must have been other reasons why Mr Young did not return to work after that operation, and suggested that he may have elected to stay out of the workforce due to his PTSD. Dr Millons opined that from an orthopaedic point of view, Mr Young was fit to return to full-time “moderately heavy work with lifting perhaps to 10kg.”
63. In coming to a decision, we noted that notwithstanding the submissions that Mr Young had to leave the workforce due to his war-caused disabilities alone, a number of contradictions were evident. A summary follows:
· Mr Young’s application form for disability pension at T8 in Exhibit R1, dated 1 August 2001, stated his disabilities as drinking problems and PTSD, (as diagnosed by Dr L Darcy), and gave, at question 25, the reason for ceasing work on 27 June 2001 as, “redundancy due to physical condition”. This was a reference to the ganglion on his right wrist.
· Mr Young said in his statement at Exhibit A1, paragraph 34, that when he left Nupress he was planning to work again, and applied for a number of jobs without success. That was incorrect we were told, in that Mr Young did not seek further employment. Mr Young also said in his oral evidence that he had thought of leaving his position before the ganglion occurred in 2000, because he was having problems with his hands and feet. He added in his oral evidence that Nupress dismissed him because he could not physically continue with the work, but that he also had psychological problems, and had punched a young apprentice. In Mr Colborne’s closing submissions made on behalf of Mr Young, he asked us to disregard Mr Young’s evidence in favour of the medical reports, not because there was any allegation that the Applicant was untruthful, but on account of his lack of understanding of his condition.
· At T5 (Exhibit R1), Mr Young in applying for disability pension dated 28 August 2000, did not mention psychological problems. Mr Young told us that notwithstanding he had been consulting Ms Lawson since 1994, he did not know he had psychological problems, and certainly not PTSD, until after he attended St John of God Hospital.
· In a further application for a service pension dated 11 September 2001, (Exhibit R2/75), Mr Young again only mentioned physical, and not psychological problems.
· We were mindful that Dr Tang, Mr Young’s general practitioner issued medical certificates for him on several occasions between June 2000 and August 2001, and noted that he did not mention any psychological condition, or PTSD. Mr Young’s comment on that observation was that he, the Applicant, had only asked Dr Tang for certificates in relation to the ganglion problem in order to satisfy the insurance company. He also added that Dr Tang, who is a general practitioner, would not have been qualified to comment in regard to psychological issues.
· The rehabilitation counsellor recorded on 8 May 2001, at T20/336, that Mr Young had informed him that he wished to resolve his compensation claim so that he could retire from work. He recorded that Mr Young had expressed a fear that he might further damage his right hand as he only had limited use of his left hand. The counsellor also recorded that: “Robert said he would be able to claim a higher pension if he retired from work, and this was his clear intention.”
· Notwithstanding his counsel’s submissions that Mr Young left work because of his PTSD, Mr Young told us he did not know he had PTSD until after he attended St John of God Hospital in 2002, after he left Nupress, and was told that by Dr Reinhardt, the psychiatrist there. He also gave the weight of the new welding equipment which he could no longer hold, the fear of further damage to his only good hand (his right hand), and other physical problems as his reasons for leaving Nupress.
· In a six page handwritten statement dated 6 March 2001, Mr Young wrote to Ms Bradley detailing physical disabilities, including soreness in his wrist as the reason for resigning from the position of Assistant Secretary of the Waratah Bowling Club, even reporting pain on writing this letter, and reporting constant pain 24 hours a day in his right hand, forearm and wrist.
· Mr Young also told us that he had seen no psychiatrists or psychologists for two years and felt better for it because he was not talking about problems all the time.
64. From the above noted evidence, we were satisfied that Mr Young did not leave work due to his PTSD or other war-caused conditions alone. We were not satisfied with Drs Dinnen and Harvey-Sutton importing regional pain syndrome into the equation, and find that if indeed Mr Young suffers that condition, then it is a separate item in the DSM-IV which has not been accepted as war-caused. We find from Mr Young’s own evidence that it was his physical conditions such as his inability to manage the weight of the new welding equipment and techniques, and the fear of damaging his intact right hand which led to him ceasing work in June 2001. Accordingly we find that Mr Young has not by reason of his war-caused disabilities alone been prevented from undertaking the relevant remunerative work for which he is trained, and that he had been undertaking.
65. THIRD FLENTJAR QUESTION We were not satisfied that Mr Young’s war-caused injuries or disease were the only factors which prevented him from undertaking the relevant remunerative work referred to in the first Flentjar question.We were not satisfied that war-caused injury or disease were the only factors preventing Mr Young from continuing to undertake that work. As noted above, we were satisfied that it was Mr Young’s physical inability to handle the new welding work, his intention expressed to the rehabilitation counsellor that he wanted to receive a service pension, and his fear of damaging his intact hand which were the main reasons which led to Mr Young leaving his work at Nupress which he had been doing efficiently and productively for some 24 years. We accepted that he suffered PTSD, but were satisfied, relying on Dr Roberts, that it was mild, and that even if it had impacted on Mr Young’s ability to work, the Veteran’s service related injuries or disease were not the only factors preventing him from continuing to undertake the remunerative work he had been doing which was identified when considering the first Flentjar question.
66. FOURTH FLENTJAR QUESTION As noted above, we were not satisfied that questions two and three as posed in Flentjar (supra) were answered in the affirmative. We then considered question four. We had to consider whether Mr Young was by reason of his war-caused disabilities alone being prevented from continuing to undertake his relevant remunerative work, and thus suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity.
67. We were not satisfied to the requisite standard that Mr Young is totally and permanently incapacitated, that is to say, that his incapacity from war-caused injury or war-caused disease, or both, was 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 during the assessment period. We were mindful that Mr Young’s ganglion on his right wrist, his fear of damaging his only intact hand, and other physical disabilities which were not accepted as war-caused, contributed substantially to his inability to undertake remunerative work for periods aggregating more than eight hours per week. We were satisfied with the evidence that Mr Young retired from work not for reasons of his PTSD and other war-caused disabilities alone, but due to his inability to physically continue in the workplace, due to his fear of damaging his remaining good hand, and because of his expressed desire to obtain a service pension.
68. In coming to a decision, we have taken into account the requirements of section 28 of the Act. We were satisfied that any incapacity to undertake remunerative work for periods aggregating more than eight hours a week which Mr Young may suffer is not as a result of war-caused injury or disease alone, and that he therefore does not satisfy the tests of section 24(1)(b) of the Act.
Application of section 24(1)(c) of the Act - Is Mr Young by reason of incapacity from that war-caused injury or disease or both, alone, prevented from continuing to undertake remunerative work that he was undertaking, and is, therefore suffering a loss of salary, earnings or wages, that he would not be suffering if he were free from that incapacity?
69. We were satisfied from the findings made above that Mr Young is not, by reason of his incapacity from war-caused injury or disease alone prevented from continuing to undertake remunerative work that he was undertaking. He cannot therefore meet the tests in section 24(1)(b) of the Act. Neither can we be satisfied that he is suffering a loss of salary, earnings or wages as a result of inability to work due to war-caused disabilities alone.
70. He does not satisfy the tests in section 24(1)(c) of the Act, and his application for pension at the special rate must fail.
DECISION
71. The decision under review is affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr J Campbell, Member.
Signed:
AssociateDate of Hearing5& 6 April 2006 & 15 May 2006
Date of Decision 24 May 2006
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Ms R Kemp, Dibbs Abbott StillmanAdvocate for the Mr G Doube
Repatriation Commission
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