Robinson and Repatriation Commission
[2000] AATA 562
•13 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 562
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/749
VETERANS' APPEALS DIVISION )
Re Frederick Charles Robinson
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr P D Lynch, Member
Date13 June 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/749
)
VETERANS' APPEALS DIVISION )
Re FREDERICK CHARLES ROBINSON
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 13 June 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the Tribunal:
1.Sets aside the decision of the Respondent made the 22nd day of April 1998 regarding Tinnitus;
2.Substitutes in lieu of the decision of the Respondent its decision that the Applicant is entitled to pension for the war-caused disease of Tinnitus as and from 15 March 1998;
3.Sets aside the decision of the Veterans' Review Board of 22 February 1999 so far as effects the rate of pension;
4.Substitutes in lieu of that part of the decision of the Veterans' Review Board its decision namely that the Applicant, FREDERICK CHARLES ROBINSON, is entitled to pension for incapacity occasioned by the war-caused diseases of Tinnitus and Post Traumatic Stress Disorder at the Special Rate as provided by Section 24 of the Veterans' Entitlement Act 1986 as
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Entitlement for tinnitus. Compliance with Statement of Principles. Pension at Special Rate. Assessment of incapacity according to GARP.
Veterans' Entitlements Act 1986 - subss120(1), 120(3), 120(4) and 120(6), s120A, subs24(2A)
Re Cavell and Repatriation Commission 9 AAR 534
REASONS FOR DECISION
Senior Member M D Allen
Dr P D Lynch, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Dr P D Lynch, Member
Signed: Ivanka Mamic
....................................................................................Associate
Date of Hearing 13 June 2000
Date of Decision 13 June 2000
Counsel for Applicant Mr M VincentSolicitor for Applicant Dibbs Crowther & Osborne
Advocate for Respondent Mr S Modder, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/747
By MR M.D. ALLEN, SENIOR MEMBER
AND DR P. LYNCH, MEMBER
ROBINSON and repatriation department
Sydney, 13 june 2000MR ALLEN: In this matter pursuant to an application lodged with the Tribunal on 20 May 1999, the applicant sought review of a decision by a Veterans' Review Board that on 22 February 1999 affirmed that part of a prior determination by the respondent Repatriation Commission that rejected a claim for hearing loss and tinnitus but set aside the decision of the Repatriation Commission relating to a claim for "anxiety" and substituted its decision that the applicant had the war caused disease of post traumatic stress disorder and that he was entitled to pension at 40 per cent of the General Rate for incapacity occasioned by that disability.
In these proceedings the applicant sought to have the conditions of hearing loss and tinnitus accepted as war-caused and his pension increased to that of the special rate. Pursuant to sub-section (4) of s.120 of the Veterans Entitlement Act 1986 as amended, so far as relates to any increase in disability pension, the Tribunal must be reasonably satisfied that the increase should be granted. As the applicant's condition of sensory neural hearing loss and tinnitus relate to his operational service being service in South Vietnam, then the provisions of sub-section (1) and s.3, s.120 apply, that is to say there must be found first of all a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran, but once that has been found, then the pension shall be granted unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Sub-section (6) of s.120 provides that there is no onus of proof upon either party to this review.
As the applicant's claim for disability pension was lodged after the first day of June 1994, the claim relating to sensory neural hearing loss and tinnitus is subject to the provisions of s.120A of the Veterans Entitlements Act which means that to find a reasonable hypothesis the said hypothesis must fit within the template of a so called statement of principles.
The criteria for the grant of special rate pension are set out in s.24 of the said act and this applicant who was born on 10 May 1941 is subject to that criteria set out in sub-section 2A of s.24. I do not
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pause to recapitulate that sub-section, except to say that the crux of the matter is that the inability to undertake remunerative work must be caused by incapacity from war caused injury or war caused disease or both alone. So far as relates to the alone test, the classic statement is that by Burchett J, in Cavell –v- Repatriation Commission, 9 AAR 534 at 539, namely that the task of the Tribunal is to make a practical decision whether the veteran's loss of remunerative work is attributable to his service related incapacities and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which commonsense is the proper guide.The applicant served with the Royal Australian Air Force, South Vietnam, and it was the events of that service that persuaded the Veterans Review Board to accept his post traumatic stress disorder as war caused. In reaching that decision it was of course materially accepted by reports from the applicant's treating psychiatrist, Dr Reinhart. There are two reports from Dr Reinhart which are documents T11 and T12 in the documents prepared for the Tribunal pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and at document T15 being at pages 74 and 75 s.37 document, is a further report by Dr Reinhart setting out her assessment of the degree of incapacity suffered by the applicant in accordance with the guide to the assessment of rates of veterans pensions.
There are two other psychiatrists reports before the Tribunal, namely that of Dr Gertler, whose reports are exhibits A3, A4 and A5 respectively and Dr Lee whose report is exhibit R2. Suffice to say at the outset that in this jurisdiction as with jurisdiction exercised by this Tribunal under the Safety Rehabilitation and Compensation Act 1988, the Tribunal is always much more persuaded by reports that come from treating surgeons rather than those specialist medical practitioners who have seen an applicant purely for medico-legal purposes.
The applicant served in the RAAF for some 20 years. His airforce trade being that of an air frame fitter. He retired from the airforce with the rank of Flight Sergeant and obtained employment in a business then called Nightingale Chemicals. He started as a serviceman which involved putting chemicals into and servicing cooling towers.
The particular firm or business, Nightingale Chemicals, was subject to a series of takeovers but eventually the applicant was able to put together a scheme with other investors where he became a
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shareholder in the company and was its managing director. The firm was then itself again taken over by Hydrotech Scientific Services and the applicant sold half his shares in the company so that he then simply became the service manager and lost effective control of the company, the person who had bought out most of the shares holding a 51 per cent stake.It would appear that in the course of this subsequent employment the applicant had differences with the managing director as a result of which he left the employ of Hydrotech Scientific Services. What we gather from the evidence is the parting was not amicable. In cross-examination the applicant conceded that he had to undertake legal action to obtain moneys owing to him by that company.
Suffice to say that at that time immediately he had left Hydrotech Chemical Services his services were sought by Anco Australia Pty Limited, which was a company in opposition to Hydrotech. The applicant's position there was service manager for New South Wales and his general duties were to control the service technicians and also to get out and about to create business for the company.
Apparently at first things went well, but then the applicant's post traumatic stress disorder began to manifest itself and he found he couldn't handle the position any more. He made a precipitant decision to retire, but before he did so, he cut his work down, working one week on and one week off. As to this period in the applicant's life, we were materially assisted by evidence from the applicant's wife. Indeed in his evidence it would appear that the applicant even now tended to downplay the difficulties under which he suffered and indeed which his family suffered.
The applicant during this time, it was confirmed by his wife, found that he was incapable of relating to people. He put it that he was incapable of working with people, but it extended beyond his working life.
The applicant's decision to retire was against his wife's wishes as she had at that time reviewed the family finances and considered that the applicant could not afford to retire, but he took the decision without any reference to her. So far as his working over the last six months – his working life was concerned, the applicant's wife said by the end of the week of work he was a mess. He had got into the habit of picking at his arms creating sores.
He could not read which was unusual for him, and he'd come
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©Auscript Pty Ltd 2000home, eat and then go to sleep, driving to work was wrecking him. At the end of the week off he'd be rested and looking forward to going back because he lived for his job, but after going back to work the first day, he would come home distressed, eat and go to bed. Each night he would drink and as the applicant's wife said, it didn't worry her as it relaxed him. She considered that there had also been a change in his physical presentation as he started to sleep quite a lot. She thought he had a physical illness and it got to the stage where he didn't like people visiting.
She eventually sought some help from the Department of Veterans Affairs, was referred to Vietnam Veterans counselling service at Parramatta who again referred her on to Vietnam Veterans Association at St Mary's. The upshot of this was that the applicant was recommended to see a Dr Reinhart, psychiatrist. The first report by Dr Reinhart is at document T11 and basically it says that there is nothing wrong with the applicant.
The second report by Dr Reinhart is at T15, page 41 of the T documents and that time the applicant was accompanied by his wife. It was with his wife as the catalyst, that the applicant finally gave a fuller detailed account to Dr Reinhart. In passing, Mrs Robinson gave some evidence of how that came about. Apparently, the applicant came home after first seeing Dr Reinhart, said in effect, I have not got a problem, if you think I have, you go.
It was after that that Mrs Robinson persuaded him to again go back to Dr Reinhard with her and then, to use her words, he seemed to crumple. He had told her that he didn't want it known that he had a psychiatric problem. Exhibit A6 is a letter from his former employer. It states inter alia:
While her performance as a service manager and business developer initially was up to our expectations, this diminished during his time with us. He became less effective in making rapid decisions or following through complex projects without assistance. In July 1996, his annual income was reduced from $72,000 to $52,000 as a consequence and in July 1997, he was allocated a less responsible part time support role which he could fulfil without impacting the effectiveness of the business unit. When Fred chose to retire, we did not replace him, as his contribution to the productivity of the business had become relatively small.
We note also that the applicant previously had been the president of his local golf club after taking a full part in committees etcetera.
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©Auscript Pty Ltd 2000But now his golfing is reduced, his wife noted that he started even not going to meetings which was unusual for him, because he had had an attitude that if you undertook something, you should follow through with it, but this changed. He now no longer has any association with the running of the golf club and his golfing is simply that he plays with a particular friend once a week. It is also to be noted that he doesn't associate now with other people at the golf club and if that particular friend is not available to play golf, the applicant doesn't play.
He says that he still sleeps a lot, he can't handle people, he can't stand too many people around him, he no longer socialises. His wife says that after a short time if people do visit, he simply disappears. But she is used to that now and friends now understand the diagnosis. He only associates now with immediate friends and families. Neighbours, he might say hello, but doesn't stop to talk. The applicant is agitated in crowds, doesn't like to go shopping and that is the situation with the applicant.
In her second report, Dr Reinhart says"
Mr Robinson describes a number of symptoms which have become worse over the past five years. He becomes anxious nd distressed when exposed to cues which remind him of his experiences in Vietnam. For example, helicopters' noise. He also has a very restless sleep, sometimes associated with profuse sweating and calling out.
This, by the way, was confirmed by Mrs Robinson:
He is usually unable to remember the content of his dreams, but his wife states that he appears to be drying to defend himself from an attacker. He avoids talking about his Vietnam experiences and attempts to repress intrusive thoughts. He avoids going to places which may remind him of Vietnam. He has become increasingly emotionally distanced from family and friends and has been avoiding social gatherings.
He is irritable and intolerant and has recently had angry outbursts which were both inappropriate and uncharacteristic of him. He is hyper-alert and over-concerned about safety. His concentration and memory have deteriorated markedly. His lifestyle has been significantly impaired by his symptoms in a number of ways. He retired prematurely at the end of 1997. He found he was no longer able to cope with the work because of impaired concentration, indecisiveness and
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©Auscript Pty Ltd 2000inability to relate to his colleagues. He found he was unable to complete the work and he was taking it home thus giving himself greater stress. He therefore decided to retire to save face before it became more obvious to others that he was no longer coping.
His social recreational life has also suffered. He avoids all social contacts except with very small groups of close family. He has also given up golf which he used to enjoy having been in the committee and more recently president of the club.
Dr Reinhart, we understand from the evidence from the applicant admitted him first to a period of open treatment and then later to a period of closed treatment, that is to say, as an in patient at St John of God Hospital. That diagnosis of post traumatic stress disorder and its effects was confirmed by Dr Gertler, psychiatrist. We simply mention that Dr Lee for the respondent seemed to think that the applicant suffered also as well as a post traumatic stress disorder with obsessional personality which had decompensated into clinical depression. We prefer the opinions of the treating psychiatrist and Dr Gertler that the applicant simply suffers from a post traumatic stress disorder.
Dr Lee did however confirm that the applicant's irritability and depression would prevent him from working more than 8 hours a week. Dr Reinhart is of the opinion that the applicant should not work and it appears clear from the evidence of Mrs Robinson, that the applicant, if he were to attempt to return to work would simply decompensate to a worse condition. In having regard to the applicant's ability to work, we would mention now the provisions of section 28 of the Veterans' Entitlements Act, namely that in determining whether a veteran is incapable of undertaking remunerative work, the Commission shall have regard to the following matters only:
A.The vocational trade 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 above might reasonably undertake and; C. The degree to which the physical or mental impairment of the veteran as a result of the injury or disease or both has reduced his or her capacity to undertake the kinds of remunerative work referred to in paragraph B.
A state of this applicant's trade has been that of an airframe fitter
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©Auscript Pty Ltd 2000and then a manager of an air conditioning cleaning company who is no longer able to carry on those duties because of his post traumatic stress disorder. There seemed to be some suggestion by the respondent certainly in cross-examination that the applicant had some ability to clerical work which he had denied and also an ability with computers but in our opinion, the ability to play games on a computer does not mean that one is computer literate.
So far as increase of pension is concerned, one must start first with the assessment for the post traumatic stress disorder. That assessment is to be found in chapter 4 of the guide to the assessment of rates of veteran's pensions and the various tables. 4.1, subjective to stress. So far as the evidence in this matter is concerned, we are satisfied that a rating of 10 is appropriate. We note in passing that this was an assessment given by Dr Baz, occupational physician and Dr Reinhart, the treating psychiatrist.
Table 4.2 relates to manifest distress and we consider a rating of 6 is appropriate. In passing on that, we would note ourselves, our own observation that the applicant became quite agitated when under cross-examination. Table 4.3 relating to functional effects, a rating of nil is appropriate. It would appear that table relates to the veteran's ability such as with personal hygiene, to use and consume food etcetera. Table 4.4 is occupation and we are satisfied there from the evidence of Dr Baz, Dr Reinhart and Dr Gertler, that the applicant cannot work so a level of 8 is appropriate. Table 4.5, domestic function. This is where veterans are, as it were, marked down because of having a supportive wife and family. In this case we have a rating of 2. There is discord because the matters referred to by the applicant's wife and we also note that the noise of his grandchildren upsets him.
Table 4.6, social interaction. We believe a rating of 6 is applicable here. He has withdrawn from most social undertakings with which he was concerned. Now, socially it would appear that it is restricted basically to friends who visit or the one day of golf a week with a particular friend. Table 4.7, leisure activities. Simply a 3 is there. Current therapy.
As stated the applicant has been an inmate of St John of God Hospital under Dr Reinhart. He sees Dr Reinhart every month for ongoing psycho-therapy and he is also on medication. We consider that a level 5 is appropriate here. Taking that altogether, the highest 5 numbers there on our mathematics that comes to 35.
So far as the applicant's sensory neural hearing loss is concerned and the tinnitus, in his report which was exhibit A5, Dr Scoppa,
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©Auscript Pty Ltd 2000ear, nose and throat surgeon stated inter alia:
When cross-referenced to the causal factors contained in factor 5 of the relevant statement of principles, in my opinion Mr Robinson probably sustained exposure to noise and acoustic trauma during service in Vietnam and between 1972 and 1977 that would have been capable of causing any sensory neural hearing consistent with noise induced hearing loss that may have been subsequently demonstrated audio metrically. As however his audiogram on two occasions has not shown evidence of such loss, one must conclude that the noise exposure sustained by Mr Robinson during these two periods of service, although capable of causing such permanent noise induced hearing loss, did not in fact do so in his particular case.
As for tinnitus, Dr Scoppa says:
When cross referenced to the causal factors contained in factor 5 of the relevant statement of principles, in my opinion Mr Robinson probably sustained exposure to noise and acoustic trauma during service in Vietnam that would have been capable of causing permanent sensory neural hearing loss.
So far as principles are concerned, tinnitus – its instrument number 43 of 96 and with the definitions there of acoustic trauma, we note that the applicant was subjected among other things to the noise of
Incoming mortar rounds so there is in opinion, a reasonable hypothesis connecting by way of the SAP, the applicant's tinnitus with his operational service and as there is nothing to dissuade us beyond reasonable doubt the applciability of that reasonable hypothesis, we set aside the decision under review, insofar as tinnitus is concerned.The evidence given to us was that the tinnitus, the applicant now has a couple of times a week or maybe daily. It would last for a couple of minutes. During the time he can't concentrate. Its progressively becoming more frequent. So far as the guide to the assessment of rates of veterans' pensions is concerned, tinnitus is dealt with at page 149, table 7.1.11. A rating of 2 is for very mild tinnitus not present every day and to us that seems appropriate.
So, one must then go to the tables at page 234 and what is referred to as scale 18.1, 35 and 2 is in fact under this scale adds up to 36. Leaving that, one must then deal with lifestyle effects,
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©Auscript Pty Ltd 2000they are found at tables 22. The first of those is table 22.1, personal relationships and to us a rating of 4 which we note was also assessed by Doctors Baz and Gertler, to us it seems appropriate. The mobility is interesting.
Doctor Baz gives two, Doctor Gertler says, zero. The notes for that section state that mobility for the veteran's ability to use available forms of transport. Both physical and psychological impediments to mobility are to be taken into account. Restrictions on mobility due to mental health factors should be rated in the same way as more obvious restrictions due to physical impairment.
We have mentioned before the applicant's dislike of crowds and to us a rating of 3 is applicable here because although he can drive, his driving is, among other things, effected by his short temper and irritability plus he would find it difficult to cope with public transport. Recreational and community activities, a rating of 4 is applicable in that her formerly favoured recreational pursuits, leisure and community activities have become more restricted. We again refer to the lack of interest in the running of the golf club and the restrictions on playing, ie, only with a favoured companion.
Domestic activities we pass over because employment activities are relevant and there, a rating of 5 is applicable, namely that he is unable to work, that gives 16 a rating of 6. Using the scale at the back, the 36 probably equates to 35 and as a rating of 4, that comes to 70 percent of the general rate. As the applicant has a pension of 70 percent of the general rate, it behoves us then to assess at the special rate and as far as that goes, we would refer to the report of Dr Baz which is exhibit A2 and is worth quoting considerably.
Mr Robinson served in the Navy for 20 years as an airframe fitter. He subsequently worked in the water treatment industry, initially as a field service technician and ultimately as a Service Manager. He operated a water treatment business in conjunction with a number of other persons from 1989 or 1990 until 1994. He was then employed in the water treatment business until 1997.
In my opinion Mr Robinson's work capacity has been significantly limited by anxiety. He has been unable to perform appropriately in his managerial capacity. The psychiatric symptoms have affected his efficiency and productivity. His motivation and ability to initiate and complete tasks, and his ability to deal appropriately with colleagues in meeting situations has been significantly affected by the psychiatric symptoms.
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We would only pause to say that that history by Dr Baz has been confirmed by the evidence before us. Dr Baz continues:In my opinion both his efficiency and productivity and his ability to maintain appropriate interpersonal relationships have been adversely affected by the symptoms of the psychiatric disorder.
His attempts to return to work of lesser qualitative demands have had adverse effects on self esteem and aggravate depression and irritability.
Mr Robinson has had psychiatric treatment over 2 years, including inpatient therapy and regular psychiatric attendance and medication. Psychiatric reports indicate there has been improvement in depression and irritability over that time, but in my opinion the degree of improvement has not been such that Mr Robinson is now able to work.
CONCLUSIONS
In my opinion Mr Robinson has been prevented from undertaking his remunerative appointment for more than 8 hours weekly.
In my opinion this is solely the result of the psychiatric disorder which has been diagnosed as post-traumatic stress disorder.
In my opinion this is solely the result of the psychiatric disorder which has been diagnosed as post-traumatic stress disorder.
In my opinion there is no evidence of any other significant disability which precludes Mr Robinson from work.
We would only state that our conclusions having heard the evidence are the same. A decision under review so far as affects the rate of pension will be set aside and the Tribunal will substitute its decision that the applicant is entitled to pension for the disabilities of post traumatic stress disorder and tinnitus at the special rate as and from the 28th day of July 1998.
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