Tran and Repatriation Commission
[2000] AATA 156
•2 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 156
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1130
VETERANS' APPEALS DIVISION )
Re TAN THANH TRAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date2 March 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
JD Campbell
Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Allied veteran – service pension – permanent impairments – mental impairments – physical impairments – assessment of suitable work – nature and extent of disabilities – capacity to sustain work during a normal working day or week – personal work experiences – age
Veterans' Entitlement Act 1986 - ss 5C, 7A, 37, 120(4)
Re Panke and Director-General of Social Services (1981) 4 ALD 179
Annas v Director-General of Social Security (1985) 8 FCR 49
REASONS FOR DECISION
Dr J D Campbell, Member
Mr Tan Thanh Tran ("the Applicant") in this matter seeks a review of the decision, dated 4 June 1998, of a senior delegate of the Repatriation Commission ("the Respondent") which affirmed the earlier decision dated 10 February 1990 of a delegate of the Repatriation Commission which found the Applicant was not eligible for Invalidity Service Pension as he was not permanently incapacitated for work within the meaning of subsection 37 of the Veterans' Entitlement Act 1986.
A hearing was held before the Tribunal on 8 December 1999, at which the Applicant was represented by Mr T McCombe, an advocate from the Vietnam Veterans' Association and the Respondent by Mr R Beech-Jones of counsel.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1-T29, p1-102
Supplementary Section 37 documents T30, p103-158
Medical Report Dr Dent dated 5 August 1999 Exhibit A1
Medical Report Dr Dent dated 1 December 1999 Exhibit A2
Medical Report Dr Burns dated 4 March 1999 Exhibit R1
Medical Report Dr Lewin dated 24 February 1999 Exhibit R2
Diagnostic Criteria for Post Traumatic Stress Disorder (DMS – IV) Exhibit R3
Oral evidence was presented to the Tribunal by the Applicant, Dr Burns and Dr Lewin.
IssuesThe relevant issues between the parties are:
(i)whether the Applicant has a degree of permanent incapacity for work of 85% or more; and
(ii)whether the Applicant is eligible for Invalidity Service Pension.
Legislation
The relevant legislation in the matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular subsections 5C(1), 7A, 37(1), 37(2) and 120(4).
Agreed FactsThe following facts were agreed between the parties:
i)that the Applicant is an allied veteran as defined in subsection 5C of the Act; and
ii)that the Applicant has rendered qualifying service as defined in subsection 7A of the Act; and
iii)that the Applicant has been an Australian resident for a continuous period for at least ten years; and
iv)that the effective date should the application be successful is 1 October 1997.
Background
The Applicant made a claim for Invalidity Service Pension on 1 October 1997 (T11). A determination was made by the Respondent on 7 February 1998 (T24) that the Applicant was not permanently incapacitated for service pension purposes. This decision was notified to the Applicant on 11 February 1998 (T25). The Applicant sought review of this decision on 26 February 1998 (T26). The Respondent, on 4 June 1998, made a determination that the Applicant is not eligible for invalidity service pension as he is not permanently incapacitated for work within the meaning of section 37 of the Act. The Respondent notified the Applicant of this determination on 4 June 1998 (T29).
Applicant's EvidenceThe Applicant stated he joined the Air Force of the Republic of South Vietnam on 15 June 1970 as a second lieutenant and a tactical support officer in No 5 Air Division. Further he was trained as a helicopter pilot in America, and while never in face to face combat, he saw action as a helicopter pilot in a support division.
After the end of hostilities, the Applicant informed the Tribunal that he was interned in a re-education camp for two years. The Applicant stated that conditions were harsh with much work and not enough food. He had to obey orders, was beaten from time to time and feared for his life on some occasions, particularly when fired upon.
After his release from the camp, the Applicant told the Tribunal that he returned to live with and was supported by his family. He was married during this period.
The Applicant stated that in 1980 he arrived in Australia, having been a refugee in Malaysia. For the first few years, the Applicant worked as a labourer in many factories, before becoming a bus driver in the years 1983-1986, after which he worked for Australian Post until being terminated following a fight with a workmate. Further jobs followed, with the Applicant stating that he and his wife opened a restaurant in 1994 and that this closed in 1996, with the Applicant suffering much sickness since that time. The Applicant further stated that he has been seeing Dr Law since 1997, with monthly visits occurring.
Cross ExaminationIn response to questions in cross examination, the Applicant stated that:
i)his work in the factories was mainly that of a process worker and that he did some cleaning as well; and
ii)he still has a bus driving licence; and
iii)after he finished bus driving, he worked in a number of factories, undertaking heavy lifting; and
iv)in 1988-98 he worked as a mail sorter for 12 months; and
v)in 1990-91 he worked as a truck driver for a delivery company, the work being heavy on occasions; and
vi)periods of unemployment occurred after termination from Australia Post and again after finishing with the delivery company; and
vii)during the period after ceasing working and commencing a restaurant business in 1994, he looked for any sort of work; and
viii)in the period 1994-96 he, together with his wife, who in his opinion did everything, ran a restaurant, and employed a cook, a waiter and waitress; and
ix)during this period he became tired and worked less and less towards the end.
In response to further questioning the Applicant revealed that
i)he is able to read English, having been taught English in high school and further when he underwent flying training in America; and
ii)he is married with three sons, with the eldest son at University, the middle son working and the youngest son being a cause of worry and concern since the beginning of 1999, because of his trouble with the police over his involvement in a gang; and
iii)his mother immigrated from Vietnam three years ago; his relationship with his wife is strained and further he owes a lot of money and is trying to pay it off; and
iv)he was more worried in 1996 when his business failed than he is now, although he currently has debts of $100,000 and $20,000 to a brother and sisters with a mortgage of $120,000.
In describing his medical history, the Applicant stated that he first saw Dr Pope who referred him to Dr Law, a psychiatrist. The Applicant stated that he told Dr Pope about his high blood pressure, heart trouble and back pain and that he sees Dr Law for about 15 minutes once per month. In response to further questioning, the Applicant described episodes of stomach pain which arose when he eats unsuitable food and for which he takes Tagamet, and episodes of lower back pain which have occurred in recent years. The back pain was said to be intermittent, and comes when he has been sitting or standing for too long.
The Applicant, in describing his mental problems to the Tribunal, said that his memory was causing difficulty, as he cannot remember things; that he was having difficulty with vision: that he takes medication for sleeping: that he has nightmares every night and that the nightmares are about "the killing and dying in the old days", commenced in the re-education camp and are much worse when he is worried or distressed.
In other statements to the Tribunal, the Applicant stated that he helps his wife with the housework (lighter aspects), with his sons doing any heavy work; that he would like to work, but feels too tired; and that he is currently receiving a Newstart Allowance.
Medical Evidence
Dr Pope
In his report of 24 October 1997, Dr Pope (T16), a general practitioner, details the Applicant's impairments as:
Post Traumatic Stress Disorder – a permanent impairment; and
Lumbar spondylosis – causing restricted lumbar movement; and
Indigestion – discomfort noted and a temporary condition.
Further, Dr Pope states that the Applicant has a blood pressure reading of 140/90 and that nothing abnormal was detected in the cardiovascular system. As a consequence of his understanding and examination of the Applicant, it was Dr Pope's opinion that the Applicant was unfit for any form of employment (T16, p65).
Supporting medical evidence was supplied in the following circumstances by Dr Pope:
i)Dr Sequeira, a radiologist who reported on 6 August 1997 on the Applicant's lumbosacral spine:
"There are osteophytes on the vertebral bodies but the intervertebral disc spaces define normally. There is no compression wedging or subluxation. There is no defect in the pars interarticularis. The facet joints define normally." (T16, p68).
Dr Narunsky, a radiologist, who reported on 18 January 1999 on a plain x ray of lumbosacral spine:
"There is minimal scoliosis convex to the left and straightening of the lordosis in keeping with muscle spasm.
There is no disc space narrowing or other bone or joint abnormalities detected. The SI joints have a normal appearance." (T30).Dr Barin, a consultant cardiologist who in his report of 29 October 1997 stated:
"I was able to reassure Mr Tran that there is no evidence of significant underlying cardiac disease and his blood pressure is appropriately treated. I explained that his hypertension is probably genetic in origin and will most likely require life long therapy." (T30, p143)
Dr Law, a consultant psychiatrist, who reported in his letter of 11 September 1997:
"Mr Tran saw me on 10-9-97, and he said that in the past 2 year he had suffered from spells of headache and insomnia, and he also had nightmares of past war scenes on and off. He also became easily tired, forgetful, and he felt depressed and angry often.
…
Mental examination revealed he was dejected and depressed, and he gave an account of his plight in the war time with an expression of enhanced apprehension and dejection.
Mr Tran has been suffering from post-traumatic stress disorder (PTSD), as a result of his past adverse war and re-education experiences. His symptoms of PTSD were probably made worse with the ongoing stresses of adjusting to life in a new country." (T30, p107)In further reports of 24 September 1997 and 30 November 1998, Dr Law stated:
"…The symptoms of his PTSD had become significant and disabling in the past 2 years …
He is probably permanently incapacitated for work …
I would give him a GARP rating of 45…"(T30, p1080
"…Mr Tran is still suffering from moderately severe symptoms of PTSD… I prescribed him Deptran 75 mgs …
He is still unable to be gainfully employed..." (T30, p113)
Dr Dent
Dr Dent, a consultant psychiatrist, saw the Applicant on 4 May 1999, and in his report to Dr Law dated 5 August 1999, stated in conclusion:
"…
I don't find any evidence of Post Traumatic Stress Disorder that's related to your client's period of service in Vietnam or his imprisonment in a re-education camp either.
I'm struck by the coincident onset of this with the Dysthymia and wonder if somehow as quite a reasonable explanation in fact, that these nightmares have not been precipitated by what one might call, if you will, a nightmares that's occurring in his life circumstances.
However, these nightmares do reflect his period of Service perhaps more than the re-education camp, but where it can only qualify for one of the Parasomnias and not for the criteria of PTSD under the DSM-IV.
Therefore it qualifies for the diagnosis of Nightmare Disorder which must have as its cause those events in his period of Service in Vietnam, but where it hasn't essentially troubled him until the onset of what I understand to be a Dysthymic Disorder or a Dysthymia that's related to other life events than his period of Service and where I would realistically believe that the elements of the Dysthymia are those which are the troublesome issues rather than any Nightmare Disorder that has to do with his period of service.
…" (Exhibit A1)
In a further report to Dr Law dated 30 November 1999, Dr Dent stated:
"…
When I re-examine that letter then my view is that any capacity for employment he has will be that which relates to other disabilities of a physical nature and that these other issues and life events are those which have led to the Dysthymic Disorder (appendix).
Such Dysthymic Disorder, which I believe is in clear evidence in Mr Tran's situation, then by definition it is a chronic depressive illness of moderate severity; I believe it is the accurate diagnosis and more indicative of the severity of his depression than the lesser category of diagnosis of Adjustment Disorder.
My view is that his Dsythymic Disorder is of course a contributory issue to work incapacity now.
…" (Exhibit A2)
Dr Lewin
Dr Lewin, a consultant psychiatrist, in his report dated 24 February 1999, considered the Applicant's psychiatric impairment in the following summary diagnosis and opinion.
"…
Mr Tran describes a range of reactive depressive symptoms of recent origin. He reports no history of psychiatric treatment nor does he report the use of any medication prescribed by the general practitioner relevant to a psychiatric problem.
I looked carefully for clinical signs of Post Traumatic Stress Disorder. The main features suggestive of this condition were his complaints of nightmares. Mr Tran's history did not follow the usual and expected clinical course and I found his description of these symptoms rather unusual. He did not give a rich clinical picture regarding typical post traumatic symptoms of anxiety. The time course is not consistent with the diagnosis of that condition either. I did not make the diagnosis of Post Traumatic Stress Disorder in this case.
It is my opinion that Mr Tran's psychiatric problems are a recent problem of mild to moderate severity. He presents with reactive depressive symptoms which, in my opinion, are a reflection of his current life circumstances. I did not find convincing evidence that there is any relationship between his current problems and his service as a helicopter pilot in the Vietnamese Air Force, nor did his current complaints appear to be causally related to his experience in a Communist concentration camp.
The formal diagnosis I made in Mr Tran's case was of a depressive reaction, an Adjustment Disorder with Mixed Emotional Features. His problem appears to have some impact upon his day to day functioning. I noted that there is some disturbance of sleep. However, it is my opinion that his symptoms are not sufficiently severe to prevent him from working at least on a part time basis.
The usual clinical course of this condition is for change over time. One would expect these symptoms to resolve once Mr Tran has mastered some of the current problems in his personal life. I think it most unlikely that he will develop any permanent psychiatric impairment on the basis of his current complaints.
…" (Exhibit R2)
In oral evidence, Dr Lewin confirmed his opinion that the clinical criteria for a diagnosis of post-traumatic stress disorder were not met. While there was a history of a stressor, the general long term history did not meet the criteria in that:
i)the format of nightmares was atypical; and
ii)the history, in itself, was not particularly detailed; and
iii)the avoidance syndrome was not present.
It was Dr Lewin's opinion that the Applicant was suffering an adjustment disorder with mixed emotional symptomology of anxiety and depression. Such a diagnosis was in Dr Lewin's opinion dependent upon a number of factors, namely:
(i)the Applicant was functioning well until two years ago, when his business collapsed; and
(ii)there is no impairment in cognitive functions; and
(iii)the symptomology of morbid depression, anxiety, panic disorders and agoraphobia are all not present.
In Dr Lewin's opinion, the symptoms will gradually disappear, as opposed to the clinical situation in a dysthymic disorder, where the individual will struggle along, continuing to work, with some disability and not necessarily achieving full potential.
Dr BurnsIn his report dated 4 March 1999, Dr Burns, a consultant occupational physician, reports that the Applicant's hypertension is well controlled; that his back condition, involving difficulty with bending and lifting, as well as low back pain, has developed slowly over the last ten years, and for which he has taken panadol and panamax. In relation to the Applicant's indigestion, Dr Burns, in noting that the symptoms are controlled by Tagamet, states that an endoscopic examination should be undertaken to establish whether there is particular pathology present.
In examining the Applicant's back, Dr Burns found no tenderness to palpation, an almost full range of movement of the lumbosacral spine, and no neurological or muscular power loss in the lower limbs. Dr Burns found the Applicant to have a combined impairment rating of 30.
In conclusion, Dr Burns made the following comments:
"I agree with Dr Lewin's report dated 24 February 1999 that Mr Tran does not appear to have a post traumatic stress disorder. The vast majority of his anxiety and depression appears associated with his financial problems and his family problems. He does appear to have a reactive depression and this may improve as his financial problems and his family problems do.
With respect to employment, I see no reason that he could not return to light sedentary work. Certainly his minor back problems would stop him from doing very heavy work but he would be able to do bench assembly work and other lighter non-skilled work. I see no reason that he would be unable to return to the workforce. I certainly do not believe that he is currently 85% disabled for all forms of employment.
With respect to non-medical barriers to return to work, I believe that Mr Tran can in fact speak English, even though he used an interpreter today. I see no reason that he would be unable to return to work due to his medical or non-medical problems." (Exhibit R1)
Submissions
The Applicant, in his submission, believed there was sufficient medical evidence, when relying upon the opinions of Drs Pope and Law, to enable him to meet the criteria that his degree of permanent incapacity was 85% or more and further that he was permanently incapacitated for work.
The Respondent contends that the Applicant does not suffer from post-traumatic stress disorder and that any permanent incapacity for work is less than the 85 percent incapacity required under the Act. Further the Respondent, relying upon the Full Federal Court judgement in Annas v Director-General of Social Security (1985) 8 FCR 49 and the Tribunal decision in Re Panke and Director-General of Social Services (1981) 4 ALD 179, contends that in assessing qualification for an invalidity service pension, a two stage process of evaluation is necessary namely;
an evaluation in purely medical terms of the person's physical and mental impairments; and
an ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work.
Considerations and Findings
The Tribunal, in preliminary consideration, notes the relevant legislation, namely subsections 37(1) and (2) of the Act which state
"37 (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, in the opinion of the Commission, permanently incapacitated for work.
(2)For the purpose of this section a person is taken to be permanently incapacitated for work if:
(a)the degree of the permanent incapacity for work is 85% or more; or
(b)the person is permanently blinded in both eyes."
The Tribunal, in its initial task, namely an evaluation in purely medical terms of the Applicant's physical and mental impairments, notes that the medical evidence clearly defines the following impairments:
hypertension; and
indigestion; and
lumbar spondylosis; and
a psychiatric impairment.
Further the Tribunal, in acknowledging the medical evidence detailed earlier in this decision, finds that the impairments of hypertension, lumbar spondylosis and psychiatric impairments are permanent impairments, and that the intermittent and variable condition of indigestion, although being treated with Tagamet, requires further investigation to establish the nature of the underlying impairment, if any, in order that classification can properly occur as to the temporary or permanent nature of the impairment.
The Tribunal, in considering the permanent impairments, will deal with each separately:
Hypertension
The medical evidence is that the hypertension is well controlled and that there is no significant underlying cardiac disease (Dr Barin T30, p143). The Tribunal finds in the light of this evidence that there is a permanent impairment and that the medical effects of the impairment on the Applicant's ability to work are minimal.
Lumbar Spondylosis
The Tribunal notes the medical history of the Applicant in relation to his low back pain, the radiological evidence of Drs Sequira and Narunsky and the examination of Dr Burns, and finds that the Applicant does have a degenerative process occurring in the lumbo sacral spine. The Tribunal further finds that the disease process has resulted in a permanent impairment, which both on clinical and radiological evidence has not resulted in other than a minimal loss of movement in the lumbosacral spine and pain associated with repeated bending or prolonged standing and sitting. As a consequence it is the Tribunal's finding that the permanent impairment of lumbar spondylosis, while causing the Applicant some inconvenience, will have only a minor effect on the Applicant's ability to work, with limitations involving repetitive bending and heavy lifting being the obvious restrictions.
Psychiatric Impairment
The Tribunal notes the significant differences of opinion between the three psychiatrists as to the nature of the Applicant's psychiatric impairment. Dr Law, the treating psychiatrist, is of a view that the impairment is post-traumatic stress disorder, a permanent psychiatric impairment with moderate to severe symptomology and probably permanent incapacity for work. Dr Dent considers the Applicant not to have any evidence of post-traumatic stress disorder, but indeed does have clear evidence of a dysthymic disorder, namely a chronic depressive illness of moderate severity, and that and his other impairments of a physical nature contribute to the issue of his work incapacity. Dr Lewin considers the Applicant to have an adjustment disorder with mixed emotional features, which does have some impact upon his day to day function but will resolve, in his opinion, once the Applicant has mastered some of the current problems in his personal life.
As a consequence of the expert opinion, the Tribunal finds that the Applicant:
i)does not have a condition of post-traumatic stress disorder as nominated by his treating psychiatrist. In moving from this diagnostic category the Tribunal, having noted the diagnostic criteria nominated in DMS-IV (Exhibit R3) and the history of the complaint as given by the Applicant, prefers the opinions rendered by Drs Dent and Lewin in so far as it relates to the diagnosis not being post-traumatic stress disorder, and their assessment of the Applicant's symptomology in terms of DMS-IV as it relates to Post Traumatic Stress Disorder; and
ii)does have a permanent psychiatric condition, characterised by mild to moderate depressive symptomology with mixed emotional features requiring ongoing counselling and medication. In making this finding, the Tribunal has given weight to the depressive symptomology evidenced in each of the psychiatric reports, and the further fact that there has been and is ongoing treatment over a period of some two years. Further the Tribunal in making such an assessment has relied in part on each of the psychiatric opinions and again comments that apart from the issue of nomenclature there is much common ground between them; and
iii)that the Applicant's psychiatric impairments will impinge upon, but not prevent the Applicant having a capacity to work. Such a capacity to work will depend on, in the psychiatrists' opinions, the severity of the psychiatric symptomology in part, and the limitations imposed by his physical impairments. In so finding, the Tribunal has preferred the opinions of Drs Dent and Lewin, and in part that of Dr Law, where it relates to symtomology only, for it is clear to the Tribunal that Dr Law is of a belief that the Applicant is unable to be gainfully employed.
36.The Tribunal notes that the Applicant's psychiatric impairments will be a contributing issue to his work incapacity (Dr Dent) and that any capacity for employment will be that which relates to other disabilities of a physical nature (Dr Dent). Further, such symptoms are not sufficiently severe to prevent him from working on a part-time basis (Dr Lewin) and the Tribunal notes the opinion of Dr Burns where the Applicant's physical and psychiatric impairments are considered in the light of a capacity to work.
In summary, it is the Tribunal's finding, that upon evaluation of the Applicant's physical and psychiatric impairments, that those impairments as they are currently assessed do not prevent the Applicant from engaging in work, albeit with some limitations arising from those impairments.
Further the Tribunal, in noting the Applicant's age, his ability to converse and read English, his variety of work experiences, both as an employee and as a self-employed person, the range of work opportunities available, and taking into consideration the nature and effect of the Applicant's physical and mental impairments, concludes that there is a range of work opportunities in which the Applicant could be employed. In making such a conclusion, the Tribunal is assisted by the opinions of Drs Dent, Lewin and particularly Dr Burns, where he nominates that the Applicant has a capacity to undertake bench assembly work or other lighter non-skilled work.
The Tribunal, having considered the relevant findings already made, the Applicant's history and medical opinions stated and preferred by the Tribunal, concludes that the Applicant, despite the presence of his physical and psychiatric impairments, does not have a permanent incapacity for work of 85 percent or more. Accordingly, the Tribunal finds that as the Applicant has failed to satisfy subsection 37(1)(c) of the Act as defined by subsection 37(2)(a), the Applicant does not meet the eligibility criteria for an Invalidity Service Pension.
DeterminationThe decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member
Signed: .....................................................................................
AssociateDate of Hearing 8 December 1999
Date of Decision 2 March 2000
Advocate for the Applicant Mr T McCombe
Vietnam Veterans' Association
Counsel for the Respondent Mr R Beech-Jones
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