SKVR and Repatriation Commission (Veterans' entitlements) [2017] AATA 1158 (27 July 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2016/2409
VETERANS' APPEALS DIVISION )Re: SKVR
Applicant
And: Repatriation Commission
RespondentCORRIGENDUM
TRIBUNAL: Andrew Nikolic, Senior Member
DATE: 8 August 2017
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The last sentence on the formal decision reading The application is remitted to the Respondent for the assessment of pension is to be removed.
...................................................................
Senior Member
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/2409
Re:SKVR
APPLICANT
Repatriation CommissionAnd
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:27 July 2017
Place:Melbourne
The decision under review is set aside and in substitution it is decided that the Applicant is entitled to pension paid at the Special Rate. The date of effect is 22 May 2014. The application is remitted to the Respondent for the assessment of pension.
........................................................................
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS — special rate pension – disabling condition PTSD – disabling condition major depressive disorder – disabling condition alcohol abuse – ceased work aged 39 – whether by reason of incapacity resulting from war-caused disabilities – whether veteran incapable of undertaking remunerative work for more than 8 hours per week – whether non-war caused preventative factors – “alone test” – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975
Veterans' Entitlements Act 1986
Safety, Rehabilitation and Compensation Act 1988
Cases
Chambers v Repatriation Commission (1995) FCA 1144; (1995) 55 FCR 9
Repatriation Commission v Richmond (2014) 226 FCR 21
Smith v Repatriation Commission (2014) FCAFC 53
Flentjar v Repatriation Commission (1997) 48 ALD 1
Repatriation Commission v Smith (1987) FCR 327
Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358
Re Easton and Repatriation Commission (1987) 12 ALD 777
Re Repatriation Commission and Falkner (1987) 12 ALD 87
McDonald and Director-General of Social Security (1984) 1 FCR 354SECONDARY MATERIALS
Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (Federation Press, 2016)
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
27 July 2017
Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, both parties have consented to a pseudonym being used for the Applicant in these proceedings. He is hereafter referred to as ‘SKVR’.
SKVR made an application for review with the Administrative Appeals Tribunal in relation to a decision to deny him pension at the Special Rate.
For the reasons that follow, I set aside the decision under review and decide in substitution that SKVR is entitled to pension at the Special Rate.
Background to the Application
SKVR is 42 years of age and served in the Australian Regular Army from 11 September 1995 until 31 July 2000, encompassing operational service in East Timor. On 12 June 2014…
Keep reading for free
Create a free CaseChat account to read SKVR and Repatriation Commission (Veterans' entitlements) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2017] AATA 1158
- Decision Date
CaseChat Overview and Summary
The Tribunal considered the provisions of section 24 of the Act, which outlines the criteria for the Special Rate pension, including the requirement that a veteran be totally and permanently incapacitated by war-caused injury or disease, such that this incapacity alone prevents them from undertaking remunerative work for more than 8 hours per week. The central legal issue was whether SKVR's psychiatric conditions, namely Post-Traumatic Stress Disorder (PTSD), Major Depressive Disorder, and alcohol abuse, were the sole cause of his inability to work, or if other factors, such as his non-war-caused physical conditions or personal choices, contributed to this incapacity.
The Tribunal's reasoning focused on the extensive medical evidence, particularly reports from psychiatrist Dr. Velakoulis, who consistently opined that SKVR's psychiatric conditions alone rendered him incapable of working more than 8 hours per week, and that this incapacity was likely permanent. While acknowledging evidence of SKVR's physical conditions affecting his ankle and knee, the Tribunal found that these were not the primary or sole cause of his inability to work, and that SKVR himself stated they had never prevented him from working. The Tribunal accepted Dr. Velakoulis's assessment that SKVR's psychiatric conditions were the substantial and sole cause of his work incapacity, satisfying the 'alone test' under section 24(1)(b) and (c) of the Act.
Consequently, the Tribunal set aside the VRB's decision and substituted a new decision finding SKVR entitled to a pension at the Special Rate, effective from 22 May 2014.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
SKVR contended that the requirement for him to stand for prolonged periods or walk in his managerial roles was limited and that he was virtually ‘desk-bound.’ He said that he relied on subordinate site managers to undertake the site inspections required. He said that his walking tolerance on flat surfaces was unimpaired, that he could negotiate stairs, and the longest walk he had to negotiate was to and from the car park. He said that he put up with any ankle or knee pain, and had never taken time off work as a result of these conditions. He said the sort of activities he found difficult were not work-related, but to do with his home life, such as long walks with his wife and their dog ‘over several kilometres,’ which he no longer undertook. Since ceasing remunerative work in May 2014, he claimed that his right ankle had settled substantially.TRIBUNAL’S CONSIDERATIONDoes SKVR’s war-caused incapacity alone render him incapable of undertaking remunerative work for the periods necessary to qualify for either rate of pension? To satisfy section 24(1)(b) of the Act, SKVR must be ‘totally and permanently incapacitated’ by his war-caused conditions, which alone prevent him from continuing to undertake remunerative work for periods aggregating more than eight hours per week. In that regard, I note the following medical evidence:Psychiatric ConditionsReports by Dr Velakoulis(a)Three reports by Dr Velakoulis were accepted into evidence:(i)Report dated 18 September 2012: In this report, Dr Velakoulis makes a number of recommendations regarding SKVR’s work capacity following a psychiatric admission:‘In my opinion his PTSD, depression, irritability and alcohol intake have led to a significantly altered career trajectory, in that his combined mental health morbidity means that he is far less capable of career advancement than he otherwise would have been…I feel that he is very likely to deteriorate given ongoing excessive stress, which would acutely affect his work capacity…he is not capable of working more than 24 hours per week in the medium to longer term as a compliance manager without a significant impact on his mental health.The factors affecting his work capability are his PTSD (60%), Major Depression (30%) and Alcohol Abuse (10%). His potential to cope with intense work over the medium term is poor, given his PTSD, mood symptoms, significant anxiety, his irritability and difficulty dealing with people interpersonally, his sporadic alcohol intake and the fact that he has already received treatment for some years with only limited gains.His psychiatric conditions alone would prevent him from returning to fulltime work in the longterm. It is likely that even with intensive treatment, although [SKVR] should make mild to moderate clinical gains over a period of months to years, an overwhelming positive impact on his work capacity is unlikely. As such, and on the balance of probabilities, I would conclude that his work incapacity is permanent.’(ii)Report dated 8 August 2014: Dr Velakoulis states: ‘I would suggest that he is currently incapable of working more than 8 hours per week in the short to medium term as a cleaning contract compliance manager. The factors affecting his work capability are his PTSD (50%), Major Depression (30%) and Alcohol Abuse (20%). …His assault of a staff member in early 2014 represents a barometer of his symptom and stress load, and reduced frustration tolerance.His psychiatric conditions alone currently prevent him from returning to any part or full time work in the short to medium term over the next 6 to 9 months. Given his clinical trajectory to date it is likely that with intensive treatment [SKVR] should make mildtomoderate clinical gains over a period of months to years, but any marked impact on his work capacity is unlikely.’(iii)Report dated 16 August 2015: Dr Velakoulis states: ‘I would suggest that he currently remains incapable of working more than 8 hours per week in the short to medium term as a cleaning contract compliance manager. The factors affecting his work capability over 2014-15 remain his PTSD (50%), Major Depression (40%) and Alcohol Abuse (10%). His potential to cope with return to work in the medium term remains poor given his PTSD, recurrent depressive episodes, high baseline anxiety, interpersonal irritability, sporadic alcohol intake and the fact that despite intense inpatient and outpatient treatment he has achieved no substantial clinical gains. His psychiatric conditions alone currently prevent him from returning to any part or full time work in the short and medium term. Given his clinical trajectory to date it is likely that with intensive treatment [SKVR] should make mild to moderate clinical gains over a period of months to years, but any marked impact on his work capacity is unlikely. In regards to the issue of permanence of his current work incapacity, I would now conclude that on the balance of probabilities it is more probable than not probable that his current work incapacity to work more than 8 hours per week in the medium to longer term as a cleaning contract compliance manager is permanent.’(iv)Oral Evidence: In his oral evidence, Dr Velakoulis confirmed that SKVR has been under his care since May 2008 and in the intervening period has received support from the Veterans and Veterans Families Counselling Service, and also from the VVCS, ‘but not recently.’ Dr Velakoulis detailed SKVR’s current symptoms and medications, stating that he sees him regularly for symptom and medication review, and provides psychotherapy designed to clinically-stabilise his symptoms. In response to the question of whether there has been a change in SKVR’s symptoms since his 2015 report, Dr Velakoulis stated he typically continues to suffer the majority of previously-reported symptoms with varying intensity. These include intrusive dreams, daytime intrusion, hyper-vigilance, anxiety, irritability, poor concentration, and generally low mood with suicidal ideation at times. He describes these symptoms as severely disabling and unpredictably triggered. He states that SKVR remains particularly unwell, causing ‘regular marital tension’ and remains totally incapacitated for remunerative work. (v)Dr Velakoulis said he stood by his 2015 assessment that on the balance of probabilities, SKVR was not able to work more than eight hours per week in his former role as a cleaning contract compliance manager. He said that after nine years under his direct care and years of psychological therapy before that, SKVR currently remained at ‘the opposite end of work capacity.’ (vi)In response to questions about whether telling a 42 year old patient they were permanently unfit for work was itself psychologically detrimental, Dr Velakoulis said ‘there is always some potential for hope’ that SKVR’s psychiatric conditions would stabilise to the point where he could return to work, but wasn’t ‘sure what the probability of that would be.’ He said that his treatment plan remained focussed on improving SKVR’s ‘mood, anger and marital function – just to get him out of the house.’ Dr Velakoulis said he was ‘loathe to permanently label someone as permanently incapacitated if it were made prematurely, because it might put them on a trajectory that is less than ideal.’ He explained that an assessment of permanent incapacity, however, ‘can also come with a degree of relief,’ with the ‘validation of the severity of their illness.’ In response to questions about whether future improvement in SKVR’s psychological state could result in him returning to a less stressful role that was consistent with his established skillset, Dr Velakoulis said he was uncertain:‘…as to…a lesser intensity role, I’m not sure how probable that is…but in 5, 10 years, whether he had a part-time capacity, I’m not sure I can make that decision at this particular point…I hope it will result in some clinical improvement…I’m not sure whether that clinical improvement will then translate to an increase in work capacity...It may or may not translate to improved work capacity in the future…but sometimes the clinical improvement is premised on them not going back to a stressful environment…In [SKVR’s] case the reactivation of the disorder doesn’t just relate to trauma exposure. General stress may reactivate many of his symptoms.’ Letter by Dr de Plater(b)A letter from Dr Greg de Plater, senior psychiatry registrar, dated 20 May 2014, states:‘It is considered that [SKVR] remains unfit to return to work and this is likely to remain the case for the foreseeable future. This is been very disappointing for him, but he has accepted the recommendation, and will therefore shortly submit his formal resignation on medical grounds.’Report by Dr Farnbach(c)Dr Peter Farnbach, consultant psychiatrist, saw SKVR on a single occasion on 30 August 2016 as requested by the Respondent. He had access to: SKVR’s statement dated 27 April 2016; clinical notes from his general practitioner between 2005 to July 2016; and three reports from Dr Velakoulis. Dr Farnbach states in his report dated 4 November 2016:‘Despite adequate and appropriate and extensive treatment over several years (including hospitalisation and electroconvulsive therapy) [SKVR] remains with significant symptomology that significantly limits his interpersonal and recreational functioning. He does not have a work capacity. With regard to prognosis…[SKVR’s] condition can reasonably be regarded as stable and unlikely to improve any further.… …[SKVR] has significant symptomology over several years…I do not expect him to regain a work capacity. Further treatment is unlikely to alter the situation. Report by Dr Weissman(d)Dr David Weissman, consultant psychiatrist, saw SKVR on a single occasion on 4 November 2016 as requested by SKVR’s solicitor and completed a report dated the same day. He had access to: SKVR’s statement dated 27 April 2016; the VRB decision; two letters dated 2014 from Dr de Plater; a work ability report from Dr Chia; three reports from Dr Velakoulis; the schedule of questions completed by Dr Velakoulis on 31 May 2015; and extracts from SKVR’s records from Austin Health. Dr Weissman records that on the date of their consultation, SKVR was in a ‘severely unwell psychiatric state.’ Dr Weissman also records SKVR’s claim that he was made redundant at Coles for assaulting his supervisor and that: ‘he has tended to end up in a lot of fights with members of the public. There have been no charges. He told me that there was one “big incident” involving a road rage incident against him. He told me that the perpetrator was using ice and damaged [SKVR]’s car with a cricket bat. [SKVR] got out of his car, removed the cricket bat from the perpetrator and broke the perpetrator’s cheekbone with his fists and knocked that person’s teeth out.’ (e)Dr Weissman records a fluctuation in the severity of SKVR’s symptoms over time, encompassing his employment with Swan Hill Property Services, before he again ‘got sick and ended up in hospital.’ Dr Weissman states: ‘He told me that he then “got better” for a period of time and started working at Deakin University.’ Dr Weissman’s report concludes that SKVR’s ‘psychiatric symptoms, conditions and impairment have stabilised,’ and that his ‘psychiatric prognosis…is extremely uncertain and guarded and extremely poor, negative and unfavourable, if not bleak.’ He states that: ‘[SKVR] is suffering from a very severe group of claim-related psychiatric conditions and mental injuries that clearly, totally and permanently incapacitate him for all work for the foreseeable future (indefinitely). Not only does he not have a work capacity for eight hours of so-called suitable duties per week, [SKVR] has absolutely no capacity for any work at all. He has no capacity for any remunerative work whatsoever on account of his claim-related psychiatric conditions and mental injuries. He is totally and permanently disabled.’(f)General practice records relating to SKVR detail a number of visits to SKVR’s general practitioner, including for depression or PTSD on: 23 April 2007; 14 April 2008; 5 November 2008; 7 November 2008; 20 November 2009; 14 December 2012; and 13 September 2013).(g)The available evidence also records SKVR’s inpatient admissions as a voluntary psychiatric patient as follows:(i)Austin Health (30 July 2012 – 8 October 2012). I note that during this admission, Dr Bronwyn Cooke notes in SKVR’s discharge summary that: ‘[SKVR] was successfully able to rally himself, attend several job interviews while an inpatient and got a job. Following this he gradually improved, became more reactive and his mood stabilised.’ At the hearing, SKVR confirmed that he was able to secure this role while an inpatient at Austin Health and commenced at Glad Group on 15 October 2012 on a full-time basis as Integrated Services Manager at Deakin University;(ii)Austin Health (7 April 2014 – 23 May 2014). SKVR was referred for this admission by Dr Velakoulis ‘following worsening mood and PTSD symptoms as well as concern about persistent alcohol abuse. This followed an incident at work during which [SKVR] physically assaulted an employee (a cleaner who had fallen asleep on the job).’ It was during this admission that Dr de Plater records in SKVR’s discharge summary that he had accepted ‘the consensus that the risk of him becoming violent in the workplace was too high for him to safely return to work. Although there is distress and uncertainty associated with this, he has taken positive steps towards pursuing a review of his DVA TPI status and, in the interim, ensuring that he is able to receive Centrelink benefits.’ The evidence shows that SKVR acted on this recommendation, by resigning from Glad Group on 21 May 2014. (iii)Austin Health (19 February 2015 – 25 March 2015). In the section of his discharge summary titled ‘History of presenting problem,’ it states in part: ‘…Multiple psychosocial stressors including wife returning to work after birth of now 5 month old male child…Ongoing issues with application for pension via DVA, ambivalent about being seen as permanently incapacitated at such a young age. Increased anger and irritability, increased hyperarousal and hypervigilance…multiple previous presentations and multiple failures of medication management. Referred for elaboration of mental state and possible addition of augmenting medication to improve PTSD.’(iv)Austin Health (17 July 2015 – NFI). The T-documents (Exhibit R1) contain a letter from Austin Health confirming a fourth voluntary psychiatric admission on 17 July, but no further information is available regarding the specific nature of SKVR’s presenting problem on this occasion or the date of discharge.SKVR’s Non-Psychiatric ConditionsReport by Dr Horsley(a) Occupational physician Dr Robyn Horsley states in her report dated 26 October 2016, that her clinical examination and opinion related primarily to SKVR’s physical disabilities. Dr Horsley concluded that at the time of their consultation, ‘there did not appear to be any other physical disabilities that prevent or restrict him from undertaking remunerative work for more than 20 hours per week. His primary disability is his psychiatric status.’Right Ankle and Left Knee(b)In addition to the medical reports contained in the T-documents, a bundle of documents relating to the history of SKVR’s right ankle injury were accepted into evidence. They detail surgery to his ankle in July 1996 after an initial inversion injury while playing volleyball in December 1995. Because of a post-operative infection of his right ankle that spread to his right leg, SKVR’s recovery was slower than anticipated. After leaving the Army, he attended occupational physician, Dr Peter Vyrnwy-Jones on 11 October 2001 for an assessment of his ankle. Dr Vyrnwy-Jones reported:‘Unfortunately the right ankle remains unstable. The operative repair was, therefore, only partially successful.Prior to being discharged, [SKVR] was able to perform his basic fitness test and combat fitness test. He is able to walk for reasonable distances but complains of occasional pain in the right ankle, particularly over the right lateral ligament.…[SKVR] notes a decreased range of motion in his right angle, particularly in dorsi- flexion.…In accordance with table 9.2 [SKVR] has a 5% impairment, as he has a minor loss of motion in the right ankle of less than half the normal range.(c)Clinical Notes by Dr R. Chia. (i)Dr Chia’s clinical note dated 20 January 2014 records that she saw SKVR in relation to his right ankle and left knee. She states in part:‘rolls ankle a lotleft knee catches and grindingdifficulty running ankle and knee both swell upexam DP in left footknee some crepitus……r v with orthoneeds physio’(ii)Dr Chia’s clinical note dated 14 February 2014 states in part:‘results – patella tendonitis, full tear right ankle atl and also anterior ankle impingement.’(iii)Dr Chia ordered tests of SKVR’s right ankle and left knee, writing in her referral: ‘Right ankle injury in 1996 in army. Had a modified Evans, ankle still loose, possible fragment fracture of navicular. Also left knee pain since injury. Clinically some pain in the medial menisci on testing and ?patellofemoral syndrome.’ Radiological results dated 14 February 2014 included an ultrasound and x-ray of the left knee and right ankle, which showed:Left Knee‘The left pattelar tendon is focally thickened and hypoechoic at the proximal attachment, suggestive of mild to moderate tendinopathy.…Impression: Proximal patellar tendinopathy, which accounts for the anterior knee pain.’Right AnkleImpression: Chronic complete tear of the anterior talofibular ligament. Changes in lateral malleolus related to prior surgical procedure. Mild changes of anterior ankle impingement.(iv)Dr Chia’s clinical note dated 30 January 2015 states in part:‘chronic knee/ankle pain secondary to injury during active service’(d)Report by Dr H.J.P. Khursandi, consultant orthopaedic surgeon: A report by Dr Khursandi dated 12 November 2014 noted SKVR’s description of his symptoms as:‘…constant ache of the right ankle mainly on the lateral aspect with prolonged standing. Moving the ankle whilst driving and using the accelerator and brake of a car also precipitates pain. His walking is restricted to 300 m on level ground due to pain. The ankle also gives way and swells at times.His current treatment is with paracetamol six to eight tablets or Nurofen six to eight tablets daily. He also uses ice periodically on the right ankle. e)In his report, Dr Khursandi diagnosed ‘post operative fibrosis with partial loss of movement of the right ankle following reconstruction surgery for sprain of the lateral ligament complex.’ He found that SKVR was ‘partially incapacitated’ for work as a result of his ankle injury and that the incapacity would continue indefinitely. Consistent with Dr Vyrnwy-Jones’ assessment, Dr Khursandi found that SKVR had a 5% ‘whole person impairment’ under Table 9.2 of the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1). He assessed, however, that the ankle injury did not prevent him from returning to any form of employment for ‘more than 40 hours per week in appropriate employment.’ In relation to specific work restrictions, Dr Khursandi stated: ‘It would be advisable for [SKVR] to seek employment that does not involve prolonged standing, walking, ascending slopes, inclines on stairs, running, jogging or carrying heavy loads and working in confined spaces.’ There is no suggestion in the available evidence, however, that SKVR’s managerial roles at Coles, or Swan Hill Property Services or Glad Group involved or required these activities.(f)Report by Dr F.G. Machart, orthopaedic surgeon. In preparing his report dated 27 April 2015, Dr Machart considered a Non-Economic Loss Questionnaire that SKVR had completed prior to their consultation. SKVR agreed during the hearing that the handwritten responses in the questionnaire were his, and that he claimed the following impairment effect arising from his ankle condition: ‘Continuos (sic) pain during any walking which stops any exercise. I have gained additional weight, I no longer participate in sporting clubs and it contributes to my depressive state.I re injury (sic) the ankle constantly. Once reinjured it takes several weeks to recover. As a result of my ankle injury, I need to rest regularly. I require a disabled car space… I generally do not go out as a result of the injury.I cannot walk any distance without fear of re-injuring my ankle…Unable to play with my children, or family due to my ankle injury.(g)Dr Machart states the following in relation to SKVR’s right ankle and left knee conditions:Onset of Symptoms, Subsequent Events, TreatmentRight Ankle: …[SKVR] was better for a while. He went through a fitness program. He found that the ankle kept rolling progressively with increasing severity over the subsequent years. [SKVR] told me that the severity of the condition of his right ankle had increased over the last couple of years.Left Knee: He developed left knee pain, which was apparently diagnosed as patellar tendonitis. Doctors told him that this was because of “overuse”.Current SymptomsRight Ankle: Pain laterally, instability, frequently giving way and rolling. His walking tolerance on the flat was not impaired. He puts up with the pain. He experienced difficulties walking down steps, walking one step at a time and hanging on railing. He was unable to run or play sport.Left Knee: [SKVR] continues to suffer from left knee pain.Current Treatment[SKVR] was referred by general practitioner to see a specialist. He never proceeded with the referral. He appears to be frightened of such appointments. Further surgical assessment or reconstruction was therefore not conducted. He puts up with the pain.PHYSICAL EXAMINATIONGeneralThere was mild limp evident when walking on the flat. When walking up and down steps, he hung onto railing and descending, he walked very carefully, one step at a time.Right AnkleThere was swelling over the anterior aspect of the right ankle joint. There was tenderness over the anterior talofibular ligament. There was restriction of flexion by a quarter and mild restriction to extension. There was restriction to inversion by a third and to eversion by a quarter, when compared to the opposite asymptomatic side.Left KneeThere was tenderness over the patellar ligament. There was full range of movement and no tibiofibular tenderness and no ligament laxity.INVESTIGATIONS[SKVR] presented with a report on ultrasound which suggested a rupture of the ATFL in the right ankle. X-rays showed no osteoarthritis. There were changes of anterior impingement.OPINIONRight ankle, chronic ankle ligament sprain, loss of proprioception, recurrent sprains causing pain, stiffness and instability.(h)Consistent with Dr Vyrnwy-Jones and Dr Khursandi, Dr Machart determined that SKVR’s ankle condition warranted 5% ‘whole person impairment’ under Table 9.2, in that there was less than half the range of movement restriction. However, he also determined that in light of his observed difficulties with grades and steps, he allocated a further 10% whole person impairment under Table 9.5. Tribunal’s Consideration