Stadoliukas and Repatriation Commission

[2010] AATA 986

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 986

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3779

VETERANS’ APPEAL DIVISION		)
Re		ANTANAS STADOLIUKAS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Dean Letcher QC, Senior Member and Dr Tony Austin AM, Member

Date9 December 2010

PlaceSydney

Decision The decision under review is set aside and in substitution the Tribunal decides that the applicant is entitled to disability pension at Special Rate from 30 August 2004.

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

Dean Letcher QC
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – special rate – whether incapacity from war-caused injury or disease of itself alone prevents him from working at all and certainly not more than 8 hours a week – decision under review set aside

Veterans’ Entitlements Act 1986 s 24

Cavell v Repatriation Commission (1988) 9 AAR 534

Re Morgan and Repatriation Commission (AATA 3657, 24 July 1987)

REASONS FOR DECISION

9 December 2010 Mr Dean Letcher QC, Senior Member and Dr Tony Austin AM, Member

1. Mr Stadoliukas claims disability pension at Special Rate under s 24(1) Veterans’ Entitlements Act1986.  He claims that incapacity from war-caused injury or disease of itself alone prevents him from engaging in paid work which otherwise he would have obtained (s 24(1)(b), (c), and s 24(2)).

2.      He has disabilities accepted to be war-caused of alcohol dependence, Post Traumatic Stress Disorder (PTSD), lumbar spondylosis and sensori-neural hearing loss with tinnitus.  He also has “non-accepted” conditions of urticaria, right hip-joint osteoarthritis and claimed “bad nerves”.

3.      Psychiatrists Dr S K Law on 26 April 1997 and frequently thereafter to 16 November 2009, Dr Patrick Morris on 6 June 2008, Dr L Schmidtman on 10 December 2003, 23 September 2004, 4 September 2009, 29 October 2009 and 30 November 2009 and occupational physician Dr Ross Mills on 31 July 2008 and 9 April 2010 all reported that he was unfit for any work because of his psychiatric conditions, notably the PTSD.

4.      However, the original decision-maker and the respondent Commission before the Tribunal advanced the argument that factors other than his accepted psychiatric condition contributed to his inability to work.  Dr A Smith, orthopaedic surgeon, reported on 7 May 2008 that Mr Stadoliukas would “have some difficulty with overhead work that is continuous or repetitive” due to his left rotator cuff degenerative disease and his pain from lumbar degeneration would preclude heavy repetitive bending, lifting and stooping which would affect his ability to load or unload a truck.  There was no evidence that Mr Stadoliukas had worked in positions requiring those activities.  Additionally, while Mr Stadoliukas referred to “pain in his whole body” he said he “could have worked through it … after 21 years in the Navy and Vietnam serving you grin and bear it”.  In the light of his proved physical conditions that assertion appeared consistent and credible for this applicant.

5.      Apart from the suggested effect of the non-accepted physical conditions, it was suggested that several other factors contributed to his inability to work.  Indeed, the respondent submitted to the Tribunal that the applicant’s age (he is now aged 60 years), long time out of the work force (no truck driving since 1995, casual work only to 1996) plus the effects of non-accepted conditions contributed sufficiently to defeat his application.

6.      The respondent submitted that any contribution at all greater than de minimis from factors other than the accepted psychiatric condition must lead to a decision adverse to the application.  However, in this case, while the respondent made submissions as to possible effects of the applicant’s age, other conditions and time not employed there was no cross-examination of the applicant as to those factors, no evidence beyond Dr Smith as to actual effects and no detailed explanation as to how such factors would affect this applicant in his particular situation.

7.      The applicant’s oral evidence was that from 1995 his advice from a treating psychiatrist was that he was incapable of work, should not attempt it and he was told again in 2000 not to look for work.  He said “my accepted disability from Post Traumatic Stress Disorder made me unable to go to work”.  That statement of medical opinion from a lay applicant would be discounted but for the fact that Drs Law, Morris, Schmidtman and Mills all agreed that he was unfit for work by reason of his accepted psychiatric condition.  The contrary view was a very qualified report of the orthopaedic surgeon in 2008 and a convoluted opinion of Dr Mills also in 2008 where he attempted to analyse the position “if Mr Stadoliukas’ PTSD is excluded …” but he said “when PTSD is also considered, I would defer to the opinion of a psychiatrist”.  It is worth noting that Dr Lavinia Schmidtman was the applicant’s long-time treating psychiatrist and Dr Morris was a consultant psychiatrist retained by the Department of Veterans’ Affairs.

8.      Re Morgan and Repatriation Commission (AATA 3657, 24 July 1987) held that ”any other factors that are causal need not be themselves dominant; nothing more is required than to establish their existence” (our emphasis) at [23].

9.      Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 described the “alone” test as requiring a “practical decision … that should not be made upon nice philosophical distinctions, but with an eye to reality” (per Burchett J).

10.     The intention of the legislation and fairness as well as these decisions would require “other factors” relied upon by the respondent to have some proved causal significance not just a possible or hypothetical impact.  The respondent’s case went no further than the theoretical and did not meet any test of refuting the practical evaluation of the medical support in the applicant’s case.

11.     In our view, the considered opinions of the psychiatric experts and occupational physician support the applicant’s case that his psychiatric condition alone prevents him from working.

12.     Accordingly, our decision is to set aside the decision of the Repatriation Commission dated 19 January 2005 and in its place decide that the applicant is entitled to a disability pension at Special Rate from 30 August 2004.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher QC, Senior Member and Dr Tony Austin AM, Member

Signed:         ............[sgd]...................................................................
  Associate

Date of Hearing  13 August 2010
Date of Decision  9 December 2010
Appearance for the Applicant   Mr R C “China” Hammal
Counsel for the Respondent     Miss R Henderson
Solicitor for the Respondent     Australian Government Solicitor