Tran and Repatriation Commission
[2004] AATA 1083
•14 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1083
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/881
VETERANS’ APPEALS DIVISION ) Re QUAN PHI TRAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date14 October 2004
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Dr JD Campbell Member
CATCHWORDS
Veterans Entitlements - Invalidity Service Pension - Impairments - Assessment - Incapacity for work - Impairment alone – Permanent – decision under review is affirmed.
LEGISLATION
Veterans Entitlements Act 1986, sections 37, 37AA, 57A, 57(1), 175(2)
REASONS FOR DECISION
14 October 2004 Dr J D Campbell, Member 1. In this matter the Applicant, Mr Quan Phi Tran, seeks a review of the decision of the Repatriation Commission (“the Respondent”) dated 19 December 2002 that determined that the Applicant was not permanently incapacitated for work as defined in section 37AA of the Veterans Entitlements Act 1986 (”VEA”) and that as a consequence he was ineligible for a grant of an Invalidity Service Pension (“ISP”). The primary determination was reviewed and affirmed in a further determination by the Respondent on 14 April 2003, pursuant to section 57(1) of the VEA.
BACKGROUND
2. The Applicant was born on 10 January 1952 in Vietnam. The Applicant received limited education to year nine and then joined the Army at age 17. He was trained by the Americans at Camh Ranh Bay to repair electrical systems in naval vessels. He served in the army between 1969 and 1975 and married in 1973, with four children being born. In 1975 the Applicant underwent a three-day re-education program prior to being sent with his family to a new economic zone. He found existence difficult in the zone and he returned to Ho Chi Minh City with his family where he worked fixing electrical appliances. Subsequently he was arrested, interrogated and beaten over a four to five month period, during which time he tried to kill himself by banging his head against the wall. After his release the Applicant continued to experience difficulties with the authorities.
3. In 1990 the Applicant left Vietnam in a boat with his cousin and travelled to the Philippines where he remained as a refugee for five years. In 1995 he was selected to come to Australia and he, followed by his family some two years later, lived in Cabramatta. He worked as a farm labourer for two to three years growing flowers, until he began experiencing difficulties with his arm. He received surgical treatment for his arm condition and on return to work his hours were limited because of his condition. Subsequently, his employment was terminated by his employer.
4. The Applicant was granted an Australian Visa on 13 December 1994 and on 7 April 1998 the Applicant became an Australian citizen. On 22 July 1999, the Applicant lodged an application concerning qualifying service, with the Repatriation Commission determining that the Applicant had rendered qualifying service as an allied veteran on 2 August 1999.
5. On 3 November 1999 the Applicant lodged a claim for ISP, which was denied by the Respondent on 12 April 2000 as the Applicant was not considered to be permanently incapacitated for work (T13).
6. On 31 October 2002 the Applicant lodged a claim for ISP, which is the basis for these proceedings. The Respondent determined on 19 December 2002 that the Applicant was not permanently incapacitated for work and hence ineligible for a grant of ISP (T6). This decision was subject to a review and affirmed by the Respondent pursuant to section 57A of the VEA on 14 April 2003 (T2).
ISSUES
7. The relevant issue in this matter is whether the Applicant is permanently incapacitated for work pursuant to section 37AA of the VEA and in particular pursuant to a disallowable instrument, namely the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. The Tribunal needs to consider:
(a) whether the Applicant has a combined impairment rating of 40 or more for impairments assessed pursuant to the Guide to the Assessment of Rates of Veterans’ Pensions (“GARP”);
(b) whether solely because of the impairments the Applicant is permanently unable to do work for periods adding up to more than 8 hours per week; and
(c) whether the Applicant’s impairments are permanent.
DECISION
8. The Tribunal for the reasons stated later in this decision finds that the Applicant is not permanently incapacitated for work. In so finding the Tribunal, while acknowledging that particular impairments were found to be permanent and that the combined assessment of these impairments pursuant to the GARP tables was greater than 40, concluded that the medical evidence before the Tribunal is particular in defining the Applicant as having the capacity to work more than eight hours a week, solely because of his impairments.
EVIDENCE
9. The Applicant told the Tribunal of his concerns when his family first arrived in Australia and his application to Centrelink for a disability support pension in May 2000, which was declined. Mr Tran stated that he has difficulty with sleeping and is generally irritable and cranky. Mr Tran stated that the children had left the family home, with one daughter dying in the year 2000 from a drug overdose. It was at this time that Mr Tran believes everything got worse, with him again seeing Dr Law, Consultant Psychiatrist, to whom he had been referred earlier by Dr Pope, his general practitioner. His main problems at this time were difficulties with sleeping and dreams about his daughter. Since that time Mr Tran stated that he has been seeing Dr Law every three months and is treated with Luvox 100mg nocte, Diazepam ½ tablet at night, Pendel 10mg daily, Coversyl one tablet daily and Celebrex as required.
10. Mr Tran described his normal day as commencing at 3am, when he rises from bed, sits down for an hour to two on the lounge thinking while having some tea. He returns to bed, but after 15 – 20 minutes he reverts to sitting because of back pain. He has more tea and his wife prepares some noodles for him. He does nothing for the rest of the morning, as he does not read, watch television or listen to the radio. He helps his wife with preparing the lunch at midday and cleaning up afterwards and does nothing during the afternoon. Mr Tran stated that he helps with dinner preparation, although his left arm prevents him from lifting anything heavy. Mr Tran stated that he goes to bed about 11pm and has difficulty falling asleep on three to four nights a week.
11. Mr Tran stated that the situation he has described has been the same for some years, although on some days, when he has no back pain he is able to do some other things. Mr Tran confirmed that one child still lives at home and that he sometimes goes shopping once or twice a week with his wife, during which he wanders around. Mr Tran stated that he had few friends, does not visit his children and they do not visit him; that the children are scared of him; that he has no social activities; that his wife understands his temper; that he does not drink, nor does he drive a car. Mr Tran confirmed that he gets back pain on bending or after sitting for an hour, and that the back pain is present on arising. Mr Tran stated that he did not experience back pain when walking. Mr Tran spoke of suffering headaches most days, often associated with occasions when he thinks too much about an issue. The headaches are relieved by his anti-hypertensive medication.
12. Mr Tran spoke of his wife’s chronic illness and his attending other general practitioners on occasions. These included Dr Van Li for flu/colds, Dr Andrew Le for back pain, and a Dr Dang. Mr Tran stated that he sees Dr Pope for his back pain, his difficulty with sleeping and his hypertension. Mr Tran said that he first saw Dr Law after losing his job.
13. Mr Tran stated that he occasionally sees friends in Cabramatta; that he sometimes goes for a walk for less than an hour; that he only talks with friends regarding family matters; that he does not read newspapers and if his daughter is watching television he goes to bed. Mr Tran stated that there is much conflict between himself and the children and he cannot remember the last time he saw his grandson.
14. Mr Tran stated that he felt unhappy when he first went to see Dr Law, and for a time saw him fortnightly. Mr Tran stated that he still feels the same, although the Luvox helps him sleep. He has been seeing Dr Law for 20 minutes to half an hour every three months for several years.
15. Mr Tran stated that he takes Celebrex for pain in his back, arm and head; that he did look for a job after the flower farm employment was terminated, but was unsuccessful; that he needs the use of both hands to do the electrical work and he remains concerned about voltage issues, if employed in such activities.
16. Mr Tran, in referring to service with the army in Vietnam, stated that he did not experience combat, but that there were some enemy rocket attacks at Camh Ranh Bay but not in his vicinity. Mr Tran also stated that he has trouble remembering issues, but was unaware as to how long such a difficulty had existed.
MEDICAL EVIDENCE
17. In applying for ISP on 3 November 1999, the Applicant subsequently provided the following medical documentation as to his impairments:
(a) a report from Dr Pope, General Practitioner which detailed the Applicant’s impairments (T17, page 117) as:
“…left carpal tunnel syndrome – release performed by Dr Kalnins. Post Traumatic Stress Disorder/Depression
Lumbar pain….”
(b) an X-ray report of the lumbar spine dated 25 August 1999 (T17, page 132) which shows a right sided L5 pars defect with small osteophytes noted at the L4 and L5 vertebral margins;
(c) two reports from Dr Law, Psychiatrist dated 6 August 1999 (T17, page 133) and 10 September 1999 (T17, page 134), which both concluded that the Applicant was suffering from post traumatic stress disorder, with symptoms of dejection, depression and poor sleep and therapy with counselling and psychotropic medication providing little benefit.
18. A medical report from Dr Thomas, Medical Adviser with Health Services Australia dated 31 January 2000 (T16, page 105), which concluded that the Applicant had:
· a moderate permanent impairment of the function of his non-dominant left hand, being unable to use it for repetitious tasks or for carrying or manipulating more then two to three kilograms;
· a permanent stable minor impairment of his lumbar spine which would prevent him from undertaking repetitive heavy work;
· that he was unfit for his previous work, but could perform light to moderate work;
· requires a psychiatric assessment.
19. On 29 March 2000, Dr Lovell, a Psychiatrist, concluded in his report that he could find little evidence of post traumatic stress disorder, despite significant events having recently occurred (wife’s illness, daughter’s death, his unemployment and lack of employment skills). Dr Lovell considered the Applicant as being depressed with his medication for depression being of a suboptimal dosage and treatment from Dr Law infrequent (T15, page 96).
20. As a consequence of this report Dr Thomas in his report of 4 April 2000 concluded that the Applicant was suffering from a depressive disorder and with appropriate treatment he should recover fully within a 12 month period (T15, page 95).
21. In documents received from Centrelink (Exhibit R4), the following material relates to the Applicant’s impairments:
(a)an ultrasound report of left hand dated 1 August 2000 which is reported by Dr Roberts, Radiologist, as demonstrating two ovoid nodules lying in the fascia superficial to the flexor tendon of the middle and ring fingers, and that they do not have the characteristics of ganglions;
(b)in a report dated 23 June 2000 Dr Kalnins, Orthopaedic Surgeon, confirms the history of treatment given for the Applicant’s left carpal tunnel syndrome, with current symptoms of tender nodules in the mid palm of the left hand, with no complaints of pain or sensory disturbance in the right hand;
(c)in a whole person assessment dated 20 June 2001, Dr Kanapathipillai, a Medical Adviser with Health Services Australia concluded that the Applicant had the following impairments:
· recurrent back pain, with restriction of repetitive bending and heavy lifting
· painful left hand, with thickened palmar aponeurosis in the middle of his left palm and slightly weak grip strength
· anxiety/depression slowly improving with treatment
· hypertension – treatment in progress
(d)a report from Dr Kendall, a Physician, dated 8 August 2000 confirmed that the two nodules in the left hand, post surgery, are probably neuromas;
(e)in a whole person assessment dated 11 February 2003, Dr Reilly, a medical adviser with Health Services Australia, concluded that the client’s depression was temporary and had potential for improvement.
22. In medical reports accompanying the Applicant’s claim for ISP lodged on 31 October 2002, the following matters were in evidence:
(a)a report from Dr Pope, General Practitioner, dated 18 September 2002, (T12, page 50), stating that the Applicant had the listed disabilities of:
· depression /PTSD - permanent and deteriorating
· back pain - permanent and deteriorating
(b)the X-ray of lumbar spine of 25 August 1999 (T12, page 51) which has been referred to earlier in this decision and which comments that the Applicant has a right sided L5 pars defect;
(c)a report from Dr Law, Psychiatrist dated 21 March 2002 (T12, page 52), in which he concludes that the Applicant suffers from post traumatic stress disorder. Dr Law also detailed the symptomatology of which the Applicant has complained over time, namely:
· broken sleep, headaches, forgetfulness and bad dreams
· very bad concentration
· recurrent and depressive daytime recall of his daughter’s death from an overdose
· pain in his back, left wrist and left hand
· the bad dreams related to his daughter dying and seeing himself in combat
· irritable, few friends, no hobbies
· Dr Law assessed the Applicant’s psychiatric disability at 43 points pursuant to the GARP Tables 4.1 – 4.8.
(d)a report from Dr Kendall, Physician, dated 8 August 2000 (T12, page 55), referred to earlier in this decision, noting the two nodules in the palm of the left hand.
23. In a report for fitness for work, dated 15 November 2002, (T4, page 37) Dr Rose, a Medical Adviser with Health Services Australia, detailed the following comments in relation to each impairment:
Left hand
-has undergone carpal tunnel procedures and two nodules (neuromas) have developed in palm of left hand. Applicant is said to complain of mild ache in left hand, which is exacerbated by lifting;
-good hand dexterity; no muscle wasting in hands or forearms to explain very weak hand grip;
-considers impairment from this condition as mild.
Back pain
-long history of back pain, vague as to sitting and standing tolerance, but able to walk for 15 minutes;
-normal gait, spinal movements were observed to be within normal limits;
-impairment would not restrict light to moderate work.
Psychiatric Condition
-suffering nightmares and poor sleep since stopping work;
-condition deteriorated following death of daughter in 2000;
-significant depression with possible post traumatic stress disorder;
-for psychiatric assessment.
24. In a report dated 6 December 2002 (T8, page 23), Dr George, Psychiatrist, concluded that the Applicant, with perhaps an element of depression, was suffering from a prolonged grief reaction following the death of his daughter in 2000. Dr George was unable to elicit symptoms from the Applicant which would suggest a diagnosis of post traumatic stress disorder, although he felt the Applicant may not have been co-operating during the interview situation, as evidenced by his inconsistency in memory recall. Dr George also completed a GARP assessment.
25. In a report dated 16 December 2002 (T8, page 22), Dr Lee, a Medical Adviser with Health Services Australia, concluded, having addressed Dr George’s report, that the Applicant’s incapacity for work would not continue indefinitely; that he is fit to work at least eight hours per week, and that the incapacity alone does not render the Applicant permanently incapable of undertaking work for periods of more than eight hours per week.
26. In report dated 22 March 2004 (Exhibit A2), Dr Ng, an Occupational Physician, concluded that the Applicant had the following medical conditions causing incapacity for work:
- carpal tunnel syndrome of left wrist (non dominant) with residual functional limitation despite a reasonably good outcome from operative treatment;
- chronic mechanical low back pain, much associated functional limitation;
- that the two physical conditions referred to above would have and will continue to limit the Applicant’s employment capability from jobs with a physical requirement of repetitive heavy manual handling;
- the two physical conditions would not restrict him from working in normal work hours if appropriate job duties are available to him;
- that treatment and prognosis for the psychiatric condition is a matter for the psychiatrists.
- that a GARP assessment for each impairment is:
Carpal tunnel syndrome of left wrist (10 from Table 3.1.2);
Chronic low back pain /spondylosis (10 from Table 3.3.1);
Hypertension (0 from Table 2.1.1);
Depression associated with post traumatic stress disorder and adjustment disorder from bereavement (Total 43 from Table 4.1. – 4.8).
27. In oral evidence Dr Ng detailed his reasoning behind his assessment of 43 for the psychiatric condition; confirmed his assessment of 10 for each of the two physical impairments and reassessed hypertension as 2 pursuant to Table 2.1.1.
28. In other commentary Dr Ng suggested that the Applicant needs more clinical assessment and treatment by way of explanation of the various definitive issues which appear to be associated with his psychiatric impairment, namely his lack of self esteem and his relationship with family. Dr Ng also indicated that extension and flexion of the thoraco lumbar spine was limited to three quarters of the normal range of movement.
29. On 15 September 2003 Professor Sambrook, Rheumatologist, detailed in his report (Exhibit A4) that the Applicant suffered from:
-a left carpal tunnel syndrome treated surgically and complicated with a possible neuroma on the right side proximal to surgery. Professor Sambrook concluded that assessment per Table 3.1.2 of GARP is 2 as the Applicant is able to use the limb efficiently for normal tasks, but may get excessive fatigue towards the end of the day;
-mild lumbar spondylosis, as well as the pars defect at L5. Assessed per Table 3.3.1 as 10, as there is a loss of about one quarter of the normal range of movement. Professor Sambrook noted that he estimated the range of movement; for the Applicant was less than co-operative in demonstrating a range of movement when requested.
30. In assessing fitness for employment, Professor Sambrook, while noting that the Applicant’s psychiatric problems may be a bigger factor in preventing him from returning to employment, considered that the Applicant’s physical disabilities were permanent and that the Applicant should avoid work that involves repetitive use of left hand (carpel tunnel) and heavy lifting and physical activity (lumbar spondylosis).
31. In a report dated 13 October 2003 (Exhibit R2) Dr Burns, an Occupational Physician detailed the Applicant’s impairments and the assessment thereof as follows:
- left carpal tunnel syndrome – causes a degree of weakness in his left hand and has difficulty with heavy lifting using the left hand (Assessment per Table 3.1.2. is 10 points)
- lumbar spondylosis – normal range of motion in the lumbar spine; no report of continuous or ongoing pain (Assessment per Table 3.3.1.is nil points)
- hypertension - controlled with medication (Assessment per Table 2.1.1. –is 2 points)
- psychiatric condition – left for psychiatrist to assess
32. Dr Burns considered that the Applicant’s physical impairments would prevent him from undertaking very heavy physical activities, but would not restrict him from doing lighter physical activities such as bench work, sales or marketing work. Dr Burns concluded that the Applicant would, even at the time of his report, be able to work more than eight hours per week in a suitable job.
33. Dr Burns affirmed his opinion during oral evidence, while indicating that the Applicant’s lumbar spondylosis would restrict the Applicant from tasks involving repetitive bending and lifting and carrying of heavy loads.
34. Dr Dinnen, a Psychiatrist, in his report dated 8 September 2003, (Exhibit A3), concludes that Mr Tran suffers from depression and post traumatic stress disorder. Dr Dinnen assessed Mr Tran as having an impairment rating of 45 points pursuant to Tables 4.1 – 4.8. Dr Dinnen considered that Mr Tran could work no more than 20 hours per week in suitable employment because of his psychiatric condition and that the latter condition would make him inefficient and unreliable in the workplace. Dr Dinnen also commented that he believed Dr Law’s treatment of Mr Tran’s condition was optimal, and that while his reports may not be either the most lucid or comprehensive, there is little reason to criticise the clinical expertise.
35. Dr Dinnen confirmed his stated opinions in oral evidence.
36. Dr Skinner, a Psychiatrist, in her report of 9 March 2004 (Exhibit R3) concluded that Mr Tran has suffered symptoms of depression for a number of years, since he was retrenched in 1999, and further following the death of his daughter in 2000. Dr Skinner believes the symptoms of which Mr Tran complains suggests a mild depression, but does have the characteristic symptom complex or signs of a depressive illness. Dr Skinner concludes that Mr Tran is suffering from a mild depressive disorder and adjustment disorder with depression in the context of a number of losses and his wife’s illness. The condition, in Dr Skinner’s view, is likely to respond to a more aggressive form of therapy than his present treatment.
37. Dr Skinner assessed Mr Tran’s psychiatric impairment at 13 points pursuant to Tables 4.1. – 4.8. Dr Skinner concluded that Mr Tran’s psychiatric condition does not prevent him from working at least eight hours per week.
38. Dr Skinner confirmed her stated views in oral evidence and commented that she thought the Applicant considered some of the questions asked were irrelevant, and that a purported loss of memory should encompass such an issue. Dr Skinner also felt that Mr Tran would benefit from cognitive – behavioural therapy.
CONSIDERATION AND FINDINGS
39. In preliminary comment the Tribunal observed that during the Applicant’s evidence and more so towards the end of his evidence, with increasing frequency answered a question with “I can not remember”, whereas earlier in his evidence such an answer was far less apparent. The Tribunal’s comment on such an issue in many ways is reflected in part in variable histories provided to and recorded by the many clinicians involved in this matter. It is also evidenced in part by comments made by one clinician as to an apparent lack of co-operation (Dr George). Further the Tribunal notes that many clinicians detail a robust and generally consistent history as related to them by the Applicant in relation to his general history and in particular to his recounting his symptoms of his various medical conditions. The Tribunal nevertheless draws no adverse inference as to the reliability of the Applicant’s evidence as a consequence of such observations made by either particular clinicians or by the Tribunal.
STATUTORY FRAMEWORK
40. Eligibility for Invalidity Service Pension is detailed in the Veterans’ Entitlements Act 1986 (‘the Act’) and specifically within the following statutory framework:
“37 Eligibility for invalidity service pension
(1) Subject to subsection (6), a person is eligible for an invalidity service pension if the person:
(a) is a veteran; and
(b) has rendered qualifying service; and
(c) is permanently incapacitated for work in accordance with a determination under section 37AA.
Note 1: For veteran see subsection 5C(1).
Note 2: For qualifying service see section 7A.
37AA Commission must determine circumstances in which persons are permanently incapacitated for work
(1) The Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c).
Variation or revocation
(2) The Commission may, by written determination, vary or revoke a determination under subsection (1)
Disallowable instrument
(3) A determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
The relevant disallowable instrument is Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999. Paragraph 5 states as follows:
5 Circumstances of permanent incapacity
(1) A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:
(a) is permanently blind in both eyes; or
(b) is a veteran to whom section 24 of the Act applies; or
(c) satisfies subsection (2).
(2) A person satisfies this subsection if:
(a) the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans’ Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide; and
(b) solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and
(c) the Commission is satisfied that the impairment is permanent.”
41. The Tribunal observes that there is agreement between the parties that the Applicant is a veteran, as defined by section 5C(1) of the Act and has rendered qualifying service pursuant to section 7A of the Act. The Tribunal makes such findings of its own accord, and further concludes that the Applicant satisfies subsections 37(1)(a) and (b) of the Act.
42. The issues in this matter are encapsulated in paragraph 5(2)(a), (b) and (c) of the relevant disallowable instrument, namely the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for work) Determination 1999 made pursuant to section 37AA of the Act. The Tribunal finds that on the evidence before it paragraph 5(1)(a) and (b) of the determination are not relevant in the consideration of this matter, as the Applicant is neither permanently blind or a veteran to whom section 24 of the Act applies.
43. In addressing the issue of the Applicant’s impairments there is common ground between the parties that the Applicant has a permanent impairment of his left hand following surgery for carpal tunnel syndrome. The impairment arises from two nodules, which are considered to be neuromas in the mid palm of the left hand. The Tribunal notes the many examinations by clinicians in this matter which allude to such nodules and the ultrasound by Dr Roberts which suggests that they are neuromas. The Tribunal finds that the Applicant has a permanent impairment of his left hand, which causes him some pain as well as clearly restricting his ability to carry through repetitive use of the left hand. In so finding the Tribunal relies upon the clinical reports of Dr Kalnins, Dr Kendall, Dr Roberts, Dr Ng, Dr Burns, Dr Thomas, Dr Kanapathipillai, Dr Rose and Professor Sambrook.
44. The Tribunal in addressing the impairment rating for the impairment to the left wrist and hand notes that the appropriate GARP Table is 3.1.2. After consideration of the various clinician reports referred to above and the Applicant’s symptomatology, the Tribunal concludes that the appropriate rating for this impairment is 10 points, as the Applicant can use his left limb reasonably well in most circumstances, but has minor loss of grip strength, and of digital dexterity, with repetitive use causing some difficulty.
45. Similarly the Tribunal notes that there is common ground between the parties that the Applicant suffers from lumbar spondylosis as evidenced by low back pain. The low back pain causes him difficulty with prolonged sitting and standing but not walking and is present on mobilising in the morning, with improvement during the course of the day. The Tribunal, in noting the clinical opinion of Drs Sambrook, Ng, Burns, Pope, Thomas, Kanapathipillai and Rose, concludes that the Applicant does have a permanent impairment of his back, namely a pars articularis defect and lumbar spondylosis.
46. Further the Tribunal observes that the Applicant’s symptoms arising from this impairment have been well described in the clinician’s reports and in the Applicant’s evidence. The restrictions arising from this impairment include no heavy lifting and carrying and no repetitive bending. The Tribunal does note however that there is a variance in the range of movement in the clinical reports of examination of the thoraco lumbar movement. Dr Ng, in his examination of 24 March 2004, concluded that the Applicant’s range of movement of the thoraco lumbar spine was three quarter of the normal range of movement. Professor Sambrook in his report of 15 September 2003 estimated a similar range of movement as to that found by Dr Ng, and commented that such an estimate was made (by observation of the Applicant’s movements) after the Applicant had demonstrated a much more significant loss during formal examination. Dr Burns in his report of 13 October 2003 and Dr Rose in his report of 15 November 2002 found no loss in the range of thoraco lumbar movements at clinical examination, while Dr Thomas found a loss of flexion of 20 degrees in his examination on 31 January 2000. Dr Kanapathipillai in his examination on 20 June 2001 found a normal range of spinal movements.
47. In assessing the Applicant’s impairment rating for the permanent impairment of lumbar spondylosis, the Tribunal notes the variability in clinical findings as to the range of thoraco lumbar spinal movement referred to in the previous paragraph and concludes that the Applicant has a normal or nearly normal range of movement of the thoraco lumbar spine, and in so doing, places less weight on the report of Professor Sambrook, owing to the nature of his estimate. The Tribunal, while noting the words within Dr Ng’s report that there is a slight restriction in the range of movements with forward flexion and extension to these quarters of normal range, considers that such a finding is not necessarily inconsistent with a nearly normal range of movement, given the variance that can occur on daily basis in both the individual’s physical status and the participation in the measurement process. As a consequence the Tribunal concludes that the Applicant has a nil points impairment rating for lumbar spondylosis pursuant to GARP Table 3.3.1.
48. The third condition to be addressed is hypertension. There is evidence within the documents that the Applicant’s condition of hypertension is a permanent impairment and that pursuant to GARP Table 2.1.1. the impairment rating is 2 points.
49. The fourth condition before the Tribunal is the Applicant’s psychiatric condition. The Tribunal notes the Applicant’s history of this condition and his referral to Dr Law in August 1999, following the loss of his job, and the subsequent referral in mid 2000 when the Applicant’s daughter died from a drug overdose. The Tribunal further notes the history of the Applicant’s life traumas, which include a period of military service with the South Vietnamese Army, which may or may not have involved combat experience, but would have involved living through a period of disturbing experiences. Further there evolved a period of re-education, relocation with family to a new economic zone, return to Ho Chi Min City and the trials and tribulations of that existence, including imprisonment, beatings and harassment. Escape from this environment was by way on boat to the Philippines, where he lived in a refugee camp for four to five years, after which he was accepted as a refugee to enter Australia. The Tribunal notes that the Applicant obtained work as a labourer for two years, experienced difficulty with his left hand, received surgical treatment for his left hand after which he returned to work and was later dismissed. Superimposed at that time was the arrival of his family from Vietnam in 1997. Subsequent to his termination from work, the Applicant has been unable to find further work, with the death of his daughter in mid 2000 causing significant difficulties for him and his family.
50. Five psychiatrists have been involved in assessing Mr Tran’s psychiatric condition. The first, Dr Law, the treating psychiatrist, commenced seeing the Applicant in August 1999 following his cessation of employment. Dr Law diagnosed depression and post traumatic stress disorder and treated the depression with counselling and medication, albeit with little amelioration of the Applicant’s symptomatology. The Tribunal notes that Dr Law’s clinical reports are not particularly comprehensive and indeed are lacking in particular detail. The Tribunal also recognises that such reports were not written necessarily for medico legal purposes. The Tribunal notes that Mr Tran is still under the care of Dr Law.
51. The Tribunal notes that the next psychiatrist involved was Dr Lovell in March 2000, with his examination being part of an earlier claim for ISP by Mr Tran. Dr Lovell considered that the Applicant was suffering from depression, and was unable to confirm a diagnosis of post traumatic stress disorder. Dr Lovell was of an opinion, as the Applicant’s symptoms had not improved that Dr Law’s treatment program was suboptimal.
52. The Tribunal further notes that the Applicant was assessed by Dr George in December 2002, as part of the process of assessment for the current claim for ISP. Dr George concluded that the Applicant was suffering from a prolonged grief reaction with an element of depression. Dr George stated that he was unable to elicit symptoms from the Applicant which would suggest a diagnosis of post traumatic stress disorder, although he felt the Applicant had not been cooperating with him during the interview situation.
53. The fourth psychiatrist, Dr Dinnen, assessed the Applicant in September 2003 and concluded that Mr Tran suffers from depression and post traumatic stress disorder. Dr Dinnen also commented that Dr Law’s treatment of Mr Tran’s condition was optimal, and that there is little reason to criticise his clinical expertise.
54. Dr Skinner examined Mr Tran in March 2004 and concluded that Mr Tran’s symptoms are consistent with a mild depressive disorder, being an adjustment disorder with depression in the context of a number of losses and his wife’s illness. Dr Skinner considered that Mr Tran’s condition is likely to respond to a more aggressive form of therapy.
55. The Tribunal, having considered all the evidence and clinical opinions, concludes that the Applicant is suffering from post traumatic stress disorder and a depressive disorder. The Tribunal recognises the diagnosis of the Applicant’s psychiatric condition as a complex issue involving cross cultural issues. The Tribunal also recognises that the psychiatric condition became an issue after his employment was terminated, but nowhere amongst any of the psychiatric reports is there a record of the Applicant’s condition prior to that time, as recounted by either the Applicant or his wife or another member of the family.
56. Further the Tribunal in satisfying itself as to the diagnosis has addressed the diagnostic criteria nominated in DSM IV for post traumatic stress disorder, noted the symptomatology listed in Dr Law’s report of 21 March 2002, noted the history and symptomatology as told by the Applicant to the Tribunal and to the various clinicians involved in this manner. Further the Tribunal notes that while Dr Law and Dr Dinnen conclude that post traumatic stress disorder and depression is the appropriate diagnostic nomenclature, Drs Lovell and George stated that they were unable to elicit symptoms which would support a diagnosis of post traumatic stress disorder, with Dr Skinner concluding that the psychiatric diagnosis was other than PTSD.
57. In summary the Tribunal concludes that the diagnosis of the Applicant’s psychiatric condition is post traumatic stress disorder and a depressive disorder. In so finding the Tribunal has accepted in part the findings of all the psychiatrists involved as regards the depressive disorder. In relation to post traumatic stress disorder the Tribunal has placed reliance on the opinions of Drs Law and Dinnen in that Dr Law has been the treating doctor for some five years, with continued contact over that period and that both he and Dr Dinnen were able to elicit symptoms from the Applicant which permitted a diagnosis of post traumatic stress disorder to be made. The Tribunal again expresses concern as to the absence of information from family members as regards Mr Tran’s psychiatric condition over time.
58. In further analysis, the Tribunal concludes that the psychiatric condition is a permanent impairment. The Tribunal recognises that with a depressive illness symptomatology will vary over time, with or without medication. While clinicians may have an expectation that medication may assist in ameliorating symptoms of depression, the underlying propensity to depression remains . Both Drs Lovell and Skinner expressed opinions that the treatment rendered by Dr Law was either suboptimal or could be more aggressive. Dr Dinnen considered that Dr Law, the treating psychiatrist, was providing an optimal treatment program, and indeed Dr Law was singularly placed to make such an assessment as what was an optimal treatment program for Mr Tran. In the light of their differing opinions, which seem to arise from lack of improvement in Mr Tran’s clinical symptomatology over five years, despite treatment, the Tribunal is of an opinion that without understanding and hearing from Dr Law as to the rationale of his treatment program, any commentary as to whether treatment is suboptimal is made on a basis of less than adequate knowledge of the treatment circumstances.
59. The Tribunal, in summary, finds that the Applicant’s psychiatric condition is permanent, in that despite the evidence that the same level of clinical symptomatology has occurred over the last five years, there is no evidence of substance before the Tribunal that the underlying psychiatric condition is likely to alter. In so stating the Tribunal recognises that there is a possibility that some of the symptoms may be ameliorated or varied by other forms of therapy and medication, but without affect on the underlying pathology, where it is able to be identified.
60. The Tribunal in assessing the psychiatric impairment, pursuant to GARP Tables 4.1. – 4.8 notes the various assessments made by Drs Law, Dinnen, George, Skinner and Ng and the symptomatology described over time by the Applicant. The Tribunal would observe the significant discrepancy in assessment that would seem to exist between Drs Law, Dinnen and Ng on one hand and Drs Skinner and Lovell on the other, an issue with which the Tribunal has some difficulty as the instructions for implementation are clearly defined in the Tables.
61. The Tribunal makes the following assessment for each table with reasons for such a finding defined:
Table 4.1. 10 points:
Applicant has very frequent symptoms (daily). Causes him moderate distress. Often unable to distract himself from those symptoms.
Table 4.2. 10 points:
Applicant shows obsessive distress and preoccupation with symptoms as observed by Tribunal.
Table 4.3. 2 points:
Moderate interference with function in some everyday situations, as evidenced by his daily activity perception.
Table 4.4. 5 points:
Major difficulties at work because of physical restrictions and difficulties with concentration and application.
Table 4.5. 5 points:
Continual conflict with family members as evidenced by his anger towards wife and estrangement from his two sons.
Table 4.6. 5 points:
Substantial reduction in social interaction almost negligible interaction with friends/family.
Table 4.7. 5 points:
Loss of interest in most recreational pursuits, little reading, does not watch television, occasional walk.
Table 4.8. 3 points:
Continued medication and counselling from Dr Law.
62. The Tribunal concludes that the final impairment rating for Mr Tran’s psychiatric impairment is 35 points. As a consequence of the Tribunal’s impairment rating for the psychiatric condition (35 points), the left hand impairment (10 points), lumbar spondylosis (nil) and hypertension (2points), the Tribunal finds that the Applicant’s combined impairment rating is 47. As a consequence the Tribunal concludes that the Applicant satisfies paragraph 5(2)(a) of the Veterans’ Entitlements Determination 1999 in that the Applicant’s combined impairment is greater than 40.
63. In addressing paragraph 5(2)(b) of the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for work) Determination 1999, the clinical opinion before the Tribunal is both consistent and precise, with the exception of Dr Low and in part Dr Ng. In November 2002 Dr Rose stated that the Applicant’s left hand impairment was mild and that his lumbar spondylosis would not prevent the Applicant from undertaking light to moderate work. In March 2004 Dr Ng stated that the above mentioned physical impairments would not prevent the Applicant from working in normal work hours if appropriate job duties are available to him, Dr Ng considered that the Applicant’s psychiatric condition would restrict him presently for obtaining and/or performing any full employment. Professor Sambrook in his report of September 2003 concluded that the Applicant should avoid work that involves repetitive use of his left hand and heavy lifting and physical activity. Dr Burns in his report of 13 October 2003 considers that the Applicant’s physical impairments would not restrict him from doing lighter physical activities and would be able to work more than eight hours a work in a suitable job.
64. In relation to the psychiatric impairment only Dr Law has consistently stated that Mr Tran is unfit for work for more than two years and is permanently incapacitated for work, while Dr Ng was more guarded in his consideration when stating that Mr Tran was presently impaired from working a minimal eight hours per week. While remaining guarded as to the prognosis for the psychiatric condition, Dr Ng commented that he would refer to psychiatrists for management and prognosis of Mr Tran’s psychiatric condition. Dr Dinnen in his report of September 2003, considered that Mr Tran could work no more than 20 hours per week in suitable employment, an opinion he confirmed in oral evidence. Dr Skinner in her report of March 2004, considered that the Applicant could work more than eight hours per week, Dr George in his report of December 2002 concluded that the Applicant could work in part time sedentary employment, while Dr Lovell in his report of March 2000 considered the Applicant would be fit for work in the future.
65. It is evident to the Tribunal that the Applicant’s physical disabilities cause the Applicant some restrictions in the workplace, namely no repetitive use of left hand and no lifting or carrying of heavy weights and no repetitive bending. The Tribunal considers that the restrictions imposed by the Applicant’s physical impairments do not restrict his hours of employment in suitable employment. It is again evident to the Tribunal as a result of the clinical opinions that the Applicant’s psychiatric impairment is the main restriction of his employment ability and capabilities, as far as impairments are considered. It is further evident to the Tribunal that all the psychiatrists but Dr Law conclude that the Applicant’s psychiatric impairment does not prevent him from working eight or more hours per week, with Dr Dinnen suggesting up to 20 hours per week. The Tribunal notes that Dr Law gives little reasoning for his assertion.
66. The Tribunal, in noting that an individual must be permanently unable to do work for periods adding up to more than eight hours per week solely because of his impairments, finds that the Applicant does not satisfy this provision. In so stating the Tribunal has interpreted solely as meaning only or alone, and that solely relates to the impairments. Other factors such as individual characteristics, including language and work skills, availability of employment and the economic situation are factors which are not considered in such an analysis. It is in these circumstances and relying upon the clinical opinions noted, apart from the particular opinion of Dr Law, that the Tribunal finds that the Applicant solely because of his impairments is permanently able to do work for periods adding up to more than eight hours per week. As a consequence, the Tribunal finds that the Applicant does not satisfy paragraph 5(2)(b) of the Veterans’ Entitlements (Invalidity Service Pension –Permanent Incapacity for work) Determination 1999.
67. Finally in addressing the issue whether the impairment is permanent, the Tribunal has already concluded that the Applicant‘s physical and psychiatric impairments are permanent. In so finding the Tribunal considered the issue of further treatment for the psychiatric impairment and concluded, that in the light of the Applicant’s personal and clinical history, and the duration and nature of the psychiatric impairment, a finding by the Tribunal of sub-optimal treatment could not be sustained. In such circumstances the Tribunal concludes, that apart from some variance in the Applicant’s symptomatology as regards his psychiatric impairment, as is the nature of such conditions, that the condition, and the impairments arising there from will continue into the foreseeable future, with no significant change.
68. A similar finding has been made in relation to the physical impairments. As a consequence of the findings that all the impairments nominated by the Tribunal in this matter are permanent, the Tribunal concludes that the Applicant satisfies paragraph 5(2)(c) of the Veterans’ Entitlements Determination 1999.
69. Finally, the Tribunal concludes by finding that the Applicant does not qualify for an Invalidity Support Pension pursuant to section 37(1) as the Applicant fails to satisfy section 37(1)(c) in that the Applicant is not permanently incapacitated for work as defined by paragraph 5 of the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for work) Determination 1999, an Instrument issued pursuant to section 37AA of the Act.
DETERMINATION
70. The decision under review is affirmed.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDate of Hearing 30 and 31 August 2004
Date of Decision 14 October 2004
Representative for the Applicant Paul Jones
Representative for the Respondent Susan Kirby
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