SHANE VAN DUREN and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2013] AATA 688

[2013] AATA 688

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/4756
Re	SHANE VAN DUREN
APPLICANT
And	MILITARY REHABILITATION AND COMPENSATION COMMISSION
RESPONDENT

DECISION

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER
Date	26 September 2013
Place	Canberra

The Tribunal affirms the decision under review for the period to October 2004, from that month, the Tribunal varies the decision under review and finds that the applicant is entitled to incapacity payments for the period October 2004 to March 2006.

.....................................[sgd]...................................

Professor RM Creyke, Senior Member

Catchwords

COMPENSATION – military compensation – entitlement to incapacity payments under the Safety, Rehabilitation and Compensation Act 1988 (Cth) section 19 – incapacitated for period from October 2004 to March 2006.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) section 19

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

Cases

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER

26 September 2013

1. Mr Shane Van Duren, born 1974, had initially sought review of two matters before the Tribunal: an incapacity claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) (Matter No 2011/4756); and whether he is entitled to assistance under the Veterans’ Vocational Rehabilitation Scheme (VVRS) (Matter No 2011/4950).

2. On the initial day of the hearing, the Repatriation Commission (Commission) gave an undertaking that if a fresh application was submitted in the VVRS matter, the Commission would reconsider the claim provided Mr Van Duren withdrew his application to the Tribunal. Mr Van Duren accepted the undertaking, and withdrew the application in matter No 2011/4950.

3. For matter No 2011/4756 Mr Van Duren had sought incapacity payments under the Act for the period from his voluntary discharge from service in the Australian Army on 15 June 2001 to 4 March 2006.

4. The application was rejected on 5 August 2011, a decision upheld on review on 24 October 2011. Mr Van Duren sought further review by the Tribunal on 30 November 2011. The incapacity claim was heard in Canberra on 30 July 2013.

   Background

5. The Tribunal notes as a preliminary point that there are inconsistencies in many of the histories provided in this matter, some at least of which are due to Mr Van Duren not being an accurate historian. So it has not been easy to confirm the facts. Nonetheless, the substance of the history is sufficiently accurate for the purposes of this application for review.

6. Mr Van Duren enlisted in the Australian Army in 1997 and served a tour in East Timor, between approximately October 1999 and February 2000.

7. Liability had been accepted for compensation under the Act or for entitlements under the veterans’ entitlements legislation in respect of:

   ·     bilateral high frequency hearing loss, accepted January 2002, permanent impairment May 2003 with effect from 25 August 1999;

   ·     tinnitus, accepted March 2003, permanent impairment May 2003 with effect from 25 August 1999;

   ·     seborrhoeic dermatitis of the head and mild eczema of the chest, accepted September 2004 with effect from 3 August 2000;

   ·     torn medial meniscus, chondromalacia patellae of the left knee, accepted  December 2007, permanent impairment April 2008 with effect from May 2001;

   ·     soft tissue injury right hip, accepted April 2008, permanent impairment October 2010 with effect from May 2001;

   ·     lumbar spondylosis and disc prolapse, accepted as war-caused  with entitlement from1 July 2002 to 30 June 30 June 2006 with effect from May 2001;

   ·     Post Traumatic Stress Disorder (PTSD) and depression, upholding the claim made first in June 2004, with a claimed date of injury of 1999.

8. On 5 March 2001 Mr Van Duren sought an accelerated discharge from service. He was discharged in June 2001. The formal request by Mr Van Duren stated his requested discharge was to assist with an emergency in the family house painting business and to spend time with his 3 year old son. There is also evidence that he sought early release on the advice of his Army padre because his wife was about to leave him. In his evidence at the hearing, however, he said the proposal for him to assist in the business did not materialise as his older brother took over the painting business. In addition, his physical and psychological condition were among the reasons he sought to be discharged.

9. His medical history on discharge indicated he had bilateral high frequency hearing loss, skin trouble (seborrhoeic dermatitis), trouble sleeping (regularly only 5 hours a night), fractured bones, as well as knee, back and other joint including hip, problems.

10. Following discharge Mr Van Duren said he spent a month with his family in Australia. In the second half of 2001, he joined the French Foreign Legion on a six months’ probationary appointment. At the end of six months he did not enlist and in early 2002, he applied to join the British Army but was rejected due to his hearing loss. Accordingly, in June 2002 he returned to Australia. He tried to re-enlist in the Australian Army but was rejected due to disciplinary charges against him while in the army post his service in East Timor.

11. From 18 March 2003 Mr Van Duren obtained security work with Chubb which continued until 19 July 2004 when he resigned. He was doing security work at night and other work during the day, including contracts for Defence. Mr Van Duren denied that he was doing electrical and bar work as he said he is not a qualified electrician and the work at a bar was security work. He said he was working at least 40 hour week. This continued until mid-2004.

12. On 5 June 2004 Mr Van Duren was charged with an offence. The previous day a former army flatmate from East Timor committed suicide and Mr Van Duren had drunk excessively when told the news. He spent some time on remand between June and August 2004, until bail could be posted. In this period he undertook a course to gain university entrance which he achieved. He was not convicted until 2006 and served three months’ imprisonment from October 2006 until early December 2006.  He said his term of imprisonment was because he skipped bail in 2005 and went to Darwin rather than because of the offence. While in Darwin he organised and paid for aid to be taken by boat to East Timor.

13. Mr Van Duren was on newstart allowance and then disability support pension from 6 December 2004. He had a serious motor vehicle accident on 15 March 2006 which aggravated his back condition. Mr Van Duren was granted a disability pension from the Commission at 60 per cent of the general rate from 8 April 2005. The pension was increased to 90 per cent of the general rate from 25 October 2006, and then to the special rate, backdated to 5 March 2006.

14. In his ‘Post Discharge Employment History’ Mr Van Duren listed as his employment:

    ·2003-2004 (four months on and off): Chubb Security, ceased work due to back pain and psychological stress;

    ·?  : STS Security

    ·? (as contacted): Security, ceased work due to back pain and psychological stress.

    He claimed he has had no work history since July 2004 although his income tax record for the 2005 tax year indicates he earned some income in the period to June 2005.

15. Mr Van Duren’s tax records indicate:

    ·2001: Income $46,497.00; tax withheld, $10,395.71;

    ·2004: Income $34,445.00; tax withheld $7,368.00;

    ·2005: Income $7,399.00; tax withheld $496.00.

    In his statement of facts, issues and contentions, Mr Van Duren claims that ‘for the years, 2002, 2003, and 2006 there was no employer, no tax withheld, no reportable income’.  No tax claims were lodged for those years.

16. On 2 June 2004, Mr Van Duren was assessed for a return to work. This followed an injury sustained to his left collarbone in April 2004 when he prevented the young boy he was supervising as part of his security work from injuring himself in a bicycle accident. After the injury, Mr Van Duren could only use his right arm but the specialist said Mr Van Duren could return to work and perform full pre-injury hours and duties by late July 2004. A document from his employer said he would be fit for modified duties from mid May 2004. A work injury assessment carried out at the time noted Mr Van Duren’s appeared to lack motivation to return to his pre-injury duties. He received workers compensation payments for the condition.

17. In 2005, Mr Van Duren commenced part-time study at the Australian National University and completed two units of an engineering degree. He subsequently transferred to a degree in international relations and according to a CRS report of June 2010, he has successfully completed three courses. In the last few years he has been involved in a development project in Borneo and has regularly visited Borneo in connection with this enterprise. He organises and pays local people to do certain projects, the profits from which go into a fund which is used to assist the people to set up their own businesses. He returned to Australia from Borneo in 2013 and has not since been employed.

18. A VVRS Report of an interview conducted with Mr Van Duren on 4 January 2006 recorded Mr Van Duren as saying ‘he currently does some commercial painting work, as this is what his father did, but he doesn’t enjoy it and it is hard on his physical condition’. The report noted that CRS Australia had said this type of activity was not sustainable in the long term given Mr Van Duren’s back condition. The report recognised that Mr Van Duren had skills particularly within the physical sphere but that without further re-training he would find it difficult to transfer these skills to the mainstream employment arena. There was a tentative recommendation for support for Mr Van Duren to complete his engineering degree but the report noted that Mr Van Duren had been guarded about the information he was prepared to share and that he needed assistance to accept his disability and for a more realistic assessment of his employment goals.

19. A CRS report for VVRS dated 24 June 2010 concluded that Mr Van Duren:

    ·Harbours a strong sense of unjust treatment by the Department of Veterans’ Affairs, particularly the rejection of his application to undertake a diving course in 2004 and that this ‘continuing emotive state is likely to present a significant barrier to any vocational rehabilitation intervention’;

    ·Should be referred to a psychologist with significant experience in the treatment of complex psychological conditions such as PTSD to ‘address his feelings of betrayal prior to the commencement of a vocational rehabilitation program’.

    ·Should participate in vocational counselling with a rehabilitation provider in consultation with his psychologist in order to identify his training needs taking into account his physical limitations and his vocational limitations, particularly given that he has a criminal record.

    Medical evidence

20. Mr Van Duren first saw a psychologist from the veterans’ counselling service in 2003 but only had one appointment. Again in June 2005 Mr Van Duren referred himself to the service and he saw a counsellor regularly every two weeks until at least June 2005. The counsellor diagnosed PTSD and said Mr Van Duren had experienced

    …a deep sense of loss after leaving the Army where he felt he belonged and subsequently feeling disconnected from civilian society. He had lost two mates from suicide and he reported his other friends were in gaol, in Iraq or struggling to deal with serious problems of their own.

21. Mr Van Duren also commenced seeing a psychiatrist, Dr William Knox, in June 2004 and has been intermittently in his care since. Dr Knox in June 2004 diagnosed chronic PTSD and initially major depressive disorder. By September 2005, Dr Knox had revised his diagnosis and no longer found Mr Van Duren had a major depressive disorder, but that he had moderately severe chronic PTSD, and some symptoms of attention deficit hyperactivity disorder (ADHD). Dr Knox provided a report in March 2005 in which he referred to Mr Van Duren being ‘able to work reliably undertaking painting for his father’. His father died in 2005. In his September 2005 report Dr Knox noted that Mr Van Duren was doing ‘little other part-time work outside his studies’. At the hearing Mr Van Duren denied that he was doing painting for his father at that time or part-time work while studying.

22. Mr Van Duren saw Dr Graham Altman, psychiatrist, four times from June 2005. Dr Altman in his report in June 2006 diagnosed severe chronic PTSD and major depression. His report also recorded heavy alcohol intake by Mr Van Duren during his first two years after he returned from East Timor, but that he had ceased drinking in 2002 until the day prior to his offence when he learned of the suicide of his mate. Dr Altman found he was ‘now totally and permanently unfit for work as a result of these disorders [PTSD, depression] alone’. He repeated this view about Mr Van Duren’s working capacity in a further report on 30 August 2006. In a report dated 30 June 2010, Dr Altman confirmed that Mr Van Duren had been suffering his psychological conditions during the period between 2001 and 2006.

23. Mr Van Duren saw Mr William Coyle, consultant orthopaedic surgeon, who provided a rehabilitation report on 15 August 2007. Dr Coyle found that since 2001 Mr Van Duren had been partially incapacitated for work, that his incapacity for work was at least partially due to service caused injuries, and that his injuries were likely to continue indefinitely. In his view, with rehabilitation Mr Van Duren would in time be able to do sedentary or light manual work for full normal hours. His partial incapacity for work was due to his back pain. Mr Coyle also noted that Mr Van Duren was psychologically as well as physically disabled.

24. Dr Altman in his report of 30 August 2006 also completed a Capacity for Employment report in which he found that Mr Van Duren was wholly incapacitated for work, this was entirely due to service–related injuries, that his incapacity was likely to continue indefinitely, and that he would not be able to return to his pre-injury employment. He also said that treatment, including supportive therapy, was responsible for some slight improvement in his condition and that there was no point in trying to institute a rehabilitation program.

25. In a report of 14 April 2008 Dr  Robert Creer, orthopaedic surgeon, reported that Mr Van Duren’s knee condition, injured in 1998, had progressively worsened and was now interfering with his activities of daily living. Dr Creer performed an arthroscopic chondroplasty to his left knee in December 2007. In a review in February 2008 Dr Creer recommended Mr Van Duren be careful to avoid running, jumping, heavy lifting and carrying type sports or activities.

    Legislation

26. The claim is made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Since the claim is for a period ending in March 2006, the previous version of the Act applies.[1] Section 19 relates to incapacity payments.

    [1] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth).

    Issues

27. The issue is whether Mr Van Duren is entitled to incapacity payments under section 19 of the Act because he was incapacitated for work during the period 15 June 2001 to 4 March 2006 ‘as a result of an injury’ (section 19(1)).

    Consideration

28. Mr Van Duren has claimed he was incapacitated from work from June 2001 to March 2006. In the alternative, he claimed that he should receive incapacity payments at least for the period October 2004 until March 2006.

29. Comcare contends that he does not meet the criteria in section 19. In particular Comcare claims that the causal chain between service and Mr Van Duren’s inability to work during the relevant period had been broken so that his incapacity no longer ‘results from’ service. Comcare relied on the following passage from Kooragang Cement Pty Ltd v Bates setting out the principle in such cases, namely, that the causal link to employment had been broken by a subsequent event (novus actus). The claimed break in the causal chain was argued to be Mr Van Duren’s offence, incarceration, trial and conviction during the period June 2004 to the end of 2006. The court said of this principle:

    The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted.  By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity…‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain.  As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity…is not determinative of the entitlement to compensation. In each case, the question whether the incapacity…‘results from’ the impugned work injury (or in the cases of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinion. Applying the second principle which Hart and Honoré[2] identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection.  But in each case, the judge deciding the matter, will do well to return…to the statutory formula and to ask the question whether the disputed incapacity…‘resulted from’ the work injury which is impugned.[3]

    [2] HLA Hart, T Honoré Causation in the Law (2^nd edn) (Oxford University Press, 1985).

    [3] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463 per Kirby P.

30. The Tribunal notes that on discharge in June 2001 Mr Van Duren had hearing problems, skin problems, trouble sleeping and a number of orthopaedic problems with his knee, back and other joints. Subsequently his PTSD and depression has been recognised as due to service. Mr Van Duren had operations on his left knee and right hip at the end of 2007 which assisted his mobility from that time. The orthopaedic surgeon Mr Creer, decided to treat his back condition conservatively and did not recommend surgery.

31. Apart from his rejection by the British Army in 2002 due to hearing loss, the evidence of his working history until June 2004 indicates no adverse impact on Mr Van Duren’s ability to work. The history of Mr Van Duren’s employment post-service with the Australian Army is, however, unclear.

32. Mr Van Duren resigned from the Australian Army, according to his request for early discharge in order to assist in his family painting business.  That request suggests he then regarded himself as fit for that kind of employment. However, he was not in Australia for more than a month before he applied for and was accepted into the French Foreign Legion. Although Mr Van Duren contended that there are no fitness levels required for the French Foreign Legion, the nature of army service suggest he would have needed a reasonable level of fitness. His fitness does not appear to have been an issue for Mr Van Duren while in the French Foreign Legion, since he made no complaint about being incapacitated for service in any of his accounts of his six months with the Legion, and he was apparently offered permanence at the end of his six month’s probationary service. Mr Van Duren submitted an income tax return for the 2001 tax year confirming that he was employed in that period.

33. He next applied to join the British Army, again suggesting he did not see himself as incapable of working nor of meeting military service fitness standards. Although he was apparently rejected due to his hearing loss, it is not known if he had requested appointment to an area of service which specifically required good hearing. Some level of hearing loss would inhibit him being engaged in particular kinds of service work, but may leave others open.

1. In any event, following that rejection he returned to Australia in mid-2002. There is no income tax return for the 2002 tax year. Mr Van Duren’s evidence was that any monies he had were garnisheed for child support and that he was destitute and living with his brothers during those nine months. It is not known what he was doing until March 2003 when he started employment in the security industry with Chubb Security, although there is evidence that he was doing some work in the family painting business. There are suggestions in the evidence that he was drinking to excess during that period. However, there is no indication that that drinking was due to service, nor is there evidence that he was incapacitated for work either by his alcohol consumption or by his other disabling conditions.

2. From March 2003 until July 2004 the evidence indicates that Mr Van Duren was working at least a 40 hour week and this is reflected in the income tax return for the 2004 financial year. He did sustain an injury to his collarbone protecting his young security charge in April 2004 and was incapacitated for work for up to six weeks, but was fit for modified duties from mid-May 2004. The injury management assessment report of June 2004 indicates he did not return to work before he was involved in the offence on 5 June 2004. His specialist said he would be able to return to full-time duties and hours by late July 2004. He was on workers compensation for the injury during that period. Otherwise he does not appear to have been incapacitated for work to late July 2004. His income tax record for the 2004 financial year indicates he was working until then.

3. Following the offence in June he was in remand until late August 2004. He may have done some painting work following that period as the report of the VVRS assessment records indicates, as too did the report of Dr Knox. However, that work would have been minimal as he had negligible earnings in the 2005 income tax year. Mr Van Duren’s evidence is that in effect he has not worked since mid-2004. He also undertook preparatory work for university study in 2004.

4. On the evidence the Tribunal is not satisfied that Mr Van Duren’s service-related injuries incapacitated him from working during the period 2001 to 2004.  He was doing the physical work which the VVRS assessment indicated his periods of mostly field duties would have equipped him to do. As he himself acknowledged, and as the VVRS report confirmed, he lacked other than physical employment skills and would need to be retrained to translate his skills into civilian employment. So until mid-2004, Mr Van Duren was working in suitable employment or for the period since he left the French Foreign Legion at the end of 2001 until March 2003, he was pursuing other military options, or was unemployed.  There is insufficient evidence to satisfy the Tribunal during that time that his incapacities were affecting his ability to be employed.

5. That leaves the period following his release from incarceration, which he claimed was October 2004 until March 2006, a period of some seventeen months. Counsel for Mr Van Duren submitted that his service–related conditions were progressively deteriorating and were debilitating him during this period. Comcare contended that the distraction of his pending trial towards the end of 2006 had broken the chain of causation and that employment factors were, as a matter of commonsense, no longer due to his employment in the Australian Army.

6. The Tribunal notes the work capacity assessment report in June 2004 which recorded his motivation to return to pre-injury duties, a motivation which may have led to him seeking university admission and to his successful completion of two courses of an engineering degree before his transfer to an international relations degree. There is evidence which the Tribunal accepts that Mr Van Duren was doing some commercial painting work during 2005.  However, as the January VVRS report indicates he was finding it ‘hard on his physical condition’. The report acknowledged that in the long term given his back condition this was not a viable employment option and he would need retraining. The report expressed some doubt that an engineering qualification was something Mr Van Duren could achieve given his then rate of study. At the same time, Mr Van Duren was sufficiently physically mobile and motivated to take himself to Darwin for six months to organise aid to East Timor. He also maintained some university study during that period. So again, there is limited evidence that Mr Van Duren was incapacitated from working during that period.

7. At the same time, Dr Altman, who had seen Mr Van Duren for four sessions between mid-2005 and mid-2006, found in his June 2006 report that Mr Van Duren was ‘now totally and permanently unfit for work as a result of these disorders [PTSD, depression] alone’,  that he was wholly incapacitated for work, that this was entirely due to service–related injuries, that his incapacity was likely to continue indefinitely, and that he would not be able to return to his pre-injury employment.

8. Dr Coyle found in his 2007 report that since 2001 Mr Van Duren, had been partially incapacitated for work, that his incapacity for work was at least partially due to service caused injuries, and that his injuries were likely to continue indefinitely. In his view, with rehabilitation Mr Van Duren would in time be able to do sedentary or light manual work for full normal hours. In his opinion Mr Van Duren’s partial incapacity for work was due to his back pain. Mr Coyle also noted that he was psychologically as well as physically disabled. Dr Creer, admittedly in a report in April 2008, found that Mr Van Duren’s knee condition had been progressively worsening, to the extent that he operated on the knee in December 2007.

9. Finally the CRS report of 2010, confirmed that Mr Van Duren was still suffering from PTSD, that his psychological attitude remained significantly affected by his treatment by the Department since at least 2004, and that until that condition and Mr Van Duren’s consequential attitudes were treated by an experienced psychologist, he would be incapable of entering into an appropriate rehabilitation program so that he could be assisted into suitable civilian employment.

10. The picture presented is sufficient to satisfy the Tribunal that from October 2004 until March 2006, Mr Van Duren’s incapacities significantly inhibited his re-entry into the civilian workforce and that for this period alone he was entitled to compensation under section 19 of the Act. Although, Comcare had argued that the events leading to Mr Van Duren’s conviction in 2006 had severed the causal chain with service, it is the Tribunal’s opinion that this was only one factor to be taken into account and that the longer-standing and pervasive impact of Mr Van Duren’s physical and psychological conditions, accepted as due to his service, had made the more predominant impact.

11. Accordingly, although the Tribunal affirms the decision under review for the period to October 2004, from that month, the Tribunal varies the decision under review and finds that Mr Van Duren is entitled to incapacity payments under section 19 of the Act for the period October 2004 to March 2006. The matter is remitted to the respondent to calculate the amount of Mr Van Duren’s entitlement.

I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member

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Associate

Dated 26 September 2013

Date of hearing	30 July 2013
Counsel for the Applicant	Mr Allan Anforth
Advocate for the Applicant	Mr Basem Seif
Solicitors for the Applicant	Capital Lawyers
Counsel for the Respondent	Mr Charlie Clark
Advocate for the Respondent	Ms Emily Baggett
Solicitors for the Respondent	DLA Piper Australia