Sizmur and Repatriation Commission (Veterans' entitlements)

[2018] AATA 306

Sizmur and Repatriation Commission (Veterans' entitlements) [2018] AATA 306 (20 February 2018)

Division:VETERANS' APPEALS DIVISION

File Number:          2014/2824

Re:William Sizmur

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:20 February 2018

Place:Brisbane

The decision under review is affirmed.

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

Deputy President Bernard J McCabe

CATCHWORDS

VETERANS’ AFFAIRS – pension at the general rate – where increase to special or intermediate rate sought – extent of incapacitation – criteria governing pension award – PTSD – whether applicant can undertake remunerative work for more than 8 hours per week – ischaemic heart disease – emphysema condition – attempts to find remunerative work – history taken by reporting doctor

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) – ss 23, 24, 24(1)(b), 24(1)(c), s 24(2)(b)

REASONS FOR DECISION

Deputy President Bernard J McCabe

20 February 2018

INTRODUCTION

1. Mr William Sizmur currently receives a pension paid at 100% of the general rate under the Veterans’ Entitlements Act 1986 (Cth) (VEA). He says the pension should be increased to the special rate (or perhaps the intermediate rate, which is between the general and special rates) because of the extent of his incapacitation as a consequence of service-related conditions. The Repatriation Commission says Mr Sizmur is unable to satisfy the requirements of s 23 of the VEA (which sets out the criteria governing the award of intermediate rate pensions) or s 24 (which sets out the criteria governing the award of special rate pensions).

2. The matter first came before this Tribunal in 2015. The applicant’s claim for the special rate was rejected. In the reasons for decision, I explained I was satisfied other factors apart from the applicant’s accepted conditions contributed to his inability to work. The Tribunal’s decision was set aside on appeal in light of the agreement between the parties that the Tribunal should have addressed the so-called ‘ameliorating’ provision in s 24(2) which qualified the operation of s 24(1)(c). The matter was remitted to the Tribunal. The parties were given the opportunity to obtain additional evidence before the matter was heard again.

3. At the conclusion of the hearing following remittal, after leading fresh medical evidence, the applicant’s counsel said the outcome turned on whether the applicant’s accepted post-traumatic stress disorder (PTSD) alone prevents him from undertaking any remunerative work for more than 8 hours per week – in other words, whether the applicant is able to satisfy the criterion in s 24(1)(b). That submission evolved during the course of the hearing. The applicant initially argued he could not work for more than 8 hours per week because of his PTSD and his (accepted) ischaemic heart disease. The principal proponent of this theory was Dr Jenkins, a psychiatrist called by the applicant. Dr Jenkins resiled from that position when informed of opinions provided by Dr Riha, a vascular physician and cardiologist. Dr Riha had concluded in her report dated 5 February 2010 that ischaemic heart disease was unlikely to limit the applicant in his pursuit of work (exhibit 1, Bundle of Documents, tab 4 at pp. 4-5). Thereafter, Dr Jenkins contended the applicant was unable to work because of PTSD alone.

   The applicant’s work history

4. Mr Sizmur gave oral evidence about the blaze in the engine room of HMAS Bombard, a naval patrol boat, which was the root cause of his PTSD condition. He was a diesel stoker in the Navy; his work extended to watch-keeping and general duties in the engine room. He was not a diesel engineer, he explained (AAT transcript at p. 118). He also spoke about his work history after he left the Navy in 1979. The history was essentially the same as that summarised in the Tribunal’s earlier reasons for decisions at [4]-[9]. He performed essentially unskilled roles as a labourer, handyman and a cleaner. He also had some experience in light mechanical work and he was a general hand on a slipway. (The respondent referred to the applicant working in what Dr Navin described as ‘marine and allied trades’ that potentially included truck driving, fuel disposition and light mechanical work.) He had periods of unemployment between 1998 and 2002 where he undertook voluntary work. He has not undertaken paid work since he had a heart attack in 2006 on the eve of him commencing a new role.

5. In fact, there is only limited evidence about the applicant’s attempts to find remunerative work after 2006. In my earlier reasons, I referred to an unsuccessful application for work at a garage/workshop in 2012 or 2013. I take that to be a reference to an interaction he mentioned during cross-examination in the hearing following the remittal. He was asked about some of the work opportunities that were potentially available to him. He said the local mechanic asked him to do some work on a vehicle but he was unable to perform because he could not see what he was doing (AAT transcript at pp. 117-118). The limitations he described in performing that work were essentially physical limitations: he could not see well enough, and he could not manoeuvre his body into the confined space. He also noted the mechanic in question was the only mechanic in the area, and he has since retired.

6. Mr Sizmur also referred to a recent study of his lungs which suggests his accepted emphysema condition has resulted in a significant reduction in his lung capacity (AAT transcript at p. 117). While the emphysema condition is accepted, that evidence is not consistent with the applicant’s central submission that he is prevented from undertaking more than 8 hours work per week as a consequence of PTSD on its own.

7. Mr Sizmur certainly described experiencing difficulties getting on with people in a workplace environment. He said he ‘lost [his]… sense of humour’ and had difficulties adjusting to civilian life after he left the Navy (AAT transcript at p. 73). But he referred to other issues as well. It was plain from his oral evidence that the fact he lives in an isolated location limits his opportunities to work. The fact he does not have a drivers’ licence compounds the problem. His licence was cancelled by the State Penalties Enforcement Registry because of unpaid fines that accrued while he was in possession of the former HMAS Aware (AAT transcript at p. 114).

8. There is evidence the applicant has undertaken unpaid work since 2006. He spoke briefly at the hearing following the remittal about his work restoring the former HMAS Aware while it was moored in the Burnett River. While he said he was not able to undertake significant work on the vessel, he suggested that was because he could not afford the work, and because the authorities would not permit him to do the work on the vessel in situ for environmental reasons. The evidence does not establish he was unable to do the restoration work because of PTSD.

9. The applicant now lives in a converted bus on a rural block. In his oral evidence, he explained he lived with his best friend, a naturopath, on a 19-acre block. The lady lives in a house on the property; he lived in the house for a time before he acquired the bus which is now situated nearby. The landlord runs horses on the block. The applicant agreed he does some odd jobs on the property: he said he monitored the water for the horses and did some grooming and mowing, although he expressly denied receiving any sort of rental deduction in return for performing chores at his landlord’s direction. He cooks for himself and walks to the shops most days. He says the lady he lives with is ‘staunch on me walking’ (AAT transcript at p. 72). He has a car he intends to refurbish but he cannot drive without a drivers’ licence. He also said he was reluctant to travel long distances on a bus – but conceded he had travelled on a bus overnight to get to the hearing. The nearest shop is located about 500 metres away from his converted bus and the applicant’s bathroom facilities are also located about 100 metres from the bus where he lives. He is able to walk a dog he inherited from his late mother. He said he leads a largely solitary life.

10. The applicant agreed he continued to smoke notwithstanding his heart condition, and he acknowledged he drinks 5-6 cans of beer a night and a bottle of rum each week. He denied he rose especially early in the mornings, even though Dr Navin recorded that detail as part of the history recounted in his report (see below).

11. I am required to make an assessment of whether the applicant qualifies for the pension during the assessment period, which commenced 21 May 2013 and runs up until the point I make my decision. It is therefore necessary to have careful regard to the evidence about his present capacity for work. The medical evidence is the key to that understanding.

    The medical evidence

12. The applicant relied in particular on the evidence of Dr Jenkins, a psychiatrist who has treated the applicant since 2011. Dr Jenkins provided a written report dated 19 October 2016 (his earlier report dated 5 January 2012 appears at exhibit 1, T1 at p. 84) and gave evidence by telephone at the hearing. Dr Jenkins said Mr Sizmur demonstrated many common signs of PTSD. A history of interpersonal conflict, irritability and poor concentration with intrusive memories all made it hard for Mr Sizmur to work. Dr Jenkins also said Mr Sizmur’s preference for working alone and withdrawing from social contact was a common reaction of PTSD sufferers. In the course of his evidence in chief, Dr Jenkins said Mr Sizmur might be physically capable of undertaking some work, but he doubted whether the applicant could work with others, or work to deadlines, deal with the public or cope with the sort of frustrations one regularly encountered in a workplace. Dr Jenkins elaborated on the barriers to work in response to questions in cross-examination. He said that light mechanical work might be physically possible, but hypervigilance, irritability, lack of concentration, low tolerance for frustration, shifting mood, the inability to be punctual or conform to deadlines and difficulties dealing with people were all features of Mr Sizmur’s PTSD. For those reasons most of the work he had done in the past was no longer open to him. Dr Jenkins said he understood the applicant had attempted to find work that accommodated his limitations, but he was unsuccessful.

13. Dr Jenkins’ evidence shifted during the course of the hearing. He was not aware of the evidence of Dr Navin, an occupational physician who had also seen the applicant. Dr Navin had found the applicant’s physical conditions were not an obstacle to him undertaking some work. I have already pointed out Dr Jenkins initially concluded the applicant’s incapacity for work was attributable to his PTSD and his heart condition; Dr Jenkins subsequently insisted the PTSD condition on its own rendered the applicant incapable of working. There were some other shortcomings in the history taken by Dr Jenkins. For example, during the course of cross-examination, it became clear he had not recorded the details of the applicant’s current living circumstances, although he pointed out when informed of some of the details of the applicant’s living arrangements and daily routine that none of it was surprising in the circumstances (AAT transcript at pp. 99,100). It seems he was also unaware of the recent report on reduced lung function that Mr Sizmur referred to during cross-examination (AAT transcript at p. 117).

14. Dr Jenkins appeared to take on the role of advocate for Mr Sizmur. That can sometimes happen when the treating doctor gives evidence: for entirely understandable reasons, the doctor might become less objective. His evidence focused on one factor – the PTSD – as being the obstacle to the applicant working. He appeared to have limited regard to other factors that might also have contributed to the applicant’s incapacity; Dr Jenkins put rather more emphasis on PTSD as an obstacle than the applicant did in his own evidence. While it seems clear the applicant’s PTSD is a factor that limits his capacity for work, the evidence of Dr Jenkins does not provide a sound basis for concluding PTSD is the only issue, or the major issue, or that it renders Mr Sizmur incapable of working at all.

15. The Commission tendered a written report prepared by Dr Duke, a psychiatrist. The report is dated 24 November 2014. Dr Duke acknowledged the applicant had reported fluctuating symptoms that impacted on his relationships with family and friends, but went on to note Mr Sizmur reported (exhibit 1, Bundle of Documents volume 2, tab 6 at p. 3):

    …he has never lost a job due to his PTSD. He does not believe that his PTSD has negatively impacted upon his work capacity over the years, and his PTSD symptoms do not appear to be the reason why he has not worked since 2006.

16. Mr Sizmur was asked about that passage in Dr Duke’s report during the course of cross-examination. He did not deny he said it. But the applicant pointed out he had a tendency to ‘rattle on’ when he was not concentrating (AAT transcript at p. 86).

17. Dr Duke also recorded Mr Sizmur as reporting (exhibit 1, Bundle of Documents volume 2, tab 6 at p. 5):

    …the reasons for his ongoing unemployment over the last eight years as being mainly due to  ongoing difficulties with decreased stamina, fatigue, shortness of breath with activity and pain in his legs.

18. When asked in cross-examination whether he had said that to Dr Duke, Mr Sizmur agreed he ‘probably said something along those lines’ because he was experiencing symptoms that suggested heart problems at the time.

19. Dr Duke went on to opine in his report (exhibit 1, Bundle of Documents volume 2, tab 6 at p. 6):

    Mr Sizmur has not worked since suffering a heart attack in 2006. His ongoing unemployment since that time appears to be primarily related to his physical health conditions rather than his PTSD.

20. Subsequently, in answer to a specific question posed by the Commission, he said (exhibit 1, Bundle of Documents volume 2, tab 6 at p. 7):

    Mr Sizmur’s PTSD is likely to be permanent but I do not believe it is contributing to any work related incapacity.

21. It is difficult to reconcile the opinions of Dr Jenkins and Dr Duke. They appear to turn on the different histories they took when they saw Mr Sizmur. When asked about the history he provided to Dr Duke, Mr Sizmur tried to explain it away but Dr Duke’s evidence is consistent with the evidence Mr Sizmur gave about his work history that I have already discussed. In all the circumstances, I prefer the evidence of Dr Duke. It was obviously objective and based on a thorough review of the available medical evidence (whereas Dr Jenkins did not appear to be aware of all the other opinions which have been expressed) and the history he recorded is more consistent with the evidence provided by the applicant at the hearing.

22. The Commission also led evidence from Dr Navin, an occupational physician. Dr Navin appeared at the hearing by telephone and provided reports dated 26 April 2016 and 20 January 2017. Dr Navin doubted the applicant’s physical conditions were an obstacle to him undertaking some work. (Dr Jenkins implicitly accepted that conclusion when he changed his evidence to conclude the PTSD on its own prevented the applicant from working.) Dr Navin conceded in cross-examination that he was not as well-placed to comment on the effects of PTSD as a specialist psychiatrist, but I have already indicated I prefer the evidence of Dr Duke in any event.

23. The medical evidence suggests the applicant’s PTSD does not on its own prevent him from working more than 8 hours each week. That is not to say he is automatically capable of undertaking 8 hours of work each week; there may be other good reasons why he cannot work, including an absence of suitable opportunities in his local area, a want of training and recent experience, not having a drivers’ licence, and so forth. I am also satisfied the evidence does not establish the applicant’s PTSD – or indeed his other accepted conditions – substantially impaired the applicant in his search for remunerative work, like that which he was undertaking prior to 2006.

    Conclusion on the application for a special rate pension

24. The applicant is not able to satisfy s 24(1)(b) of the VEA. In reaching that conclusion, I am conscious that I was prepared following the first hearing in this matter to assume the applicant satisfied the requirement in s 24(1)(b) in light of a job capacity assessment and a report provided by an employment services agency. The focus on the medical evidence in the more recent hearing provides a different perspective. Given job capacity assessments are based in part on an analysis of the medical evidence, I am satisfied I should prefer the medical experts in reaching my view. That means the applicant’s claim for a pension paid at the special rate must fail.

    The claim for a pension paid at the intermediate rate under s 23

25. There was only limited discussion at the hearing and in the final submissions about s 23 of the Act. The Commission correctly points out the applicant might also make a claim under s 23 if he fails under s 24. But he must still satisfy the criteria in s 23 which follow the same contours as s 24.

26. Section 23(1)(b) requires that:

    the veteran’s incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently…

27. It seems clear from the evidence I have already discussed that the applicant’s service-related conditions may cumulatively have the effect of preventing the applicant from working otherwise than on a part-time or intermittent basis. I note s 23(2) deems the requirement in s 23(1)(b) not to be satisfied if the applicant (a) can do at least 50% of a standard workload or otherwise (b) the veteran can undertake more than 20 hours per week. As it happens, the evidence before me was in such a state that it was difficult to be sure how much the applicant was capable of working: the applicant’s case – which I have rejected – focused instead on establishing he could not really work at all. But s 23(1)(b) requires that the conditions must have the disabling effect on their own. If other, non-service-related factors also make a contribution to that incapacity, the criterion will not be satisfied in any event.

28. I have already noted the applicant faces a number of obstacles which might prevent him from working full-time. Not all of those obstacles arise out of his service. It follows the applicant is not able to satisfy the requirement in s 23(1)(b). His claim for a pension paid at the intermediate rate must also fail in those circumstances.

    CONCLUSION

29. The reviewable decision is affirmed.

I certify that the preceding 29 (twenty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe

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

Associate

Dated: 20 February 2018

Dates of hearing:	20 July 2017 and 1 September 2017
Date final submissions received:	13 October 2017
Counsel for the Applicant:	Mr M Taylor
Solicitors for the Applicant:	Woods Prince Lawyers
Counsel for the Respondent:	Mr J Streit
Solicitors for the Respondent:	Australian Government Solicitor