Unicomb and Repatriation Commission
[2002] AATA 666
•23 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 666
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/423
VETERANS' APPEALS DIVISION )
Re GEOFFREY UNICOMB
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr J Campbell, Member
Date23 July 2002
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2001/423
)
VETERANS' APPEALS DIVISION )
Re GEOFFREY UNICOMB
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal : Senior Member M D Allen
Dr J Campbell, Member
Date : 23 July 2002
Place : Sydney
Decision: FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is VARIED in that the rate of pension to be paid to the Applicant as and from 27 April 1999 is at the Special Rate of Pension as per section 24 of the Veterans' Entitlements Act 1986 (as amended) but in all other respects the decision under review is AFFIRMED.
(Sgd) M D ALLEN
. ..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Special Rate. Whether tension headaches a separate condition or sequelae war caused post traumatic stress disorder and cervical spondylosis. Ability to work and effect of post traumatic stress disorder upon ability to retain employment.
Veterans' Entitlements Act 1988 – s24, 28, 120A; ss 120(1), (3), (4), and (6)
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Smith 15 FCR 327
Forbes v Repatriation Commission 101 FCR 50
Cavell v Repatriation Commission 9 AAR 534
Hall v Repatriation Commission 33 ALD 454
re Rogers and Repatriation commission (unrep AAT 5374, 14 September 1989)
REASONS FOR DECISION
Senior Member M D Allen Dr J Campbell, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen Dr J Campbell, Member
Signed:
..................................................................................……………………………….Associate
Date of Hearing 23 July 2002
Date of Decision 23 July 2002Solicitor for Applicant Vardanega Roberts Solicitors
Counsel for Applicant Mr C Colbourne
Advocate for Respondent Mr S Modder, Department of Veterans' Affairs
DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N423 of 2001
By MR M. D. ALLEN, SENIOR MEMBER
DR J. CAMPBELL, MEMBER
UNICOMB and REPATRIATION COMMISSION
SYDNEY, 23 JULY 2002
MR ALLEN: By application made 4 April 2001 the applicant sought review of a decision by the respondent Repatriation Commission made 20 December 1999 which pursuant to a claim made by him on 27 July 1999 accepted a claim for post traumatic stress disorder and secondary major depression and cervical spondylosis but refused a claim for tension type headache and assessed the rate of pension at 80 percent of the general rate.
It is common ground between the parties that what is before the Tribunal today is that part of the application that referred to tension type headache and an argument that the rate of pension should be the special or the intermediate rates of pension. So far as considering the applicant's claim with regard to what was termed "tension type headache" the appropriate onus of proof having regard to the fact that the veteran had operational service is that mandated by subsection 1 and subsection 3 of section 120 of the Veterans' Entitlement Act 1986 as amended.
We would add that the applicant also had defence service however it is clear from the material before us that any claim relating to tension type headache is referrable to his period of operational service which took place in the Republic of South Vietnam. The appropriate standard of proof is that the Tribunal shall determine that the disease, namely tension type headache, is war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
The Tribunal is deemed to be so satisfied beyond reasonable doubt if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the said disease with the circumstances of the particular service rendered by the veteran.
Subsection 3 of section 120A of the Veterans' Entitlements Act states that a hypothesis is not reasonable unless it conforms with a so called statement of principles if such a statement is in force. The interaction between section 120A and subsections 1 and 3 of section 120 were set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio, 83 FCR 82 at 91 and those principles are now too well known to recapitulate here.
Suffice it to say that at the relevant time there was a statement of principles in force regarding tension type headache and although the particular instrument which is to be found at document T23 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Tribunals Act 1975 is the incorrect statement of principles as it refers to non operational service we understand that the factor there set out is the same for operational service.
So far as any claim to a special rate pension is concerned the standard of proof is that set forth in subsection 4 of section 120 of the Veterans' Entitlement Act, namely that the Tribunal must decide the matter to its reasonable satisfaction. As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327, the term "reasonable satisfaction" equates to the civil standard of proof that is to say proof on the balance of probabilities.
Subsection 6 of section 120 VEA states that neither party to this review bears any onus of proof. At the outset it is difficult to ascertain just what particular condition the applicant suffers from with regard to his headaches. At page 27 of the section 37 documents an opinion by professor of neurology and consultant neurologist Michael Anthony dated 12 August 1998 it is stated:
My feel is that the patient's headaches have all the features of tension headache.
A psychiatrist Dr Hansen on 13 November 1989 stated:
He describes classical migraine.
An opinion by Dr Ryall a neurologist which was dated 20 October 1970 said:
When headache occurs lasts four to five hours, aspirin helps, nausea is slight. Precipitating factor, nervous tension.
Dr Burek consultant psychiatrist in a reported dated 27 July 2000 said:
In my opinion the tension type headaches that Mr Unicomb suffers are directly attributable to his post traumatic stress disorder and associated major depression.
It is to be noted that Dr Burek does not state that the PTSD and associated major depression so much causes that tension type headache as they are directly attributable to it. The applicant's general practitioner in a report dated 8 May 2000 noted the veteran suffered from a cervical spondylosis and tension type headaches and expressed the opinion:
These headaches can be caused by cervical spondylosis.
One thing which is clear is that although a professor of neurology Professor Anthony considers that the headaches have all the features of a tension headache, because the applicant suffers nausea with the headaches according to the relevant definition of tension type headache in the statement of principle, his headaches are not a tension type headache as the statement of principle specifically excludes a headache accompanied by nausea.
Having regard to the various medical reports before us we are satisfied however on the balance of probability that the applicant does not suffer a tension type headache so much as headaches attributable to his cervical spondylosis and also as in the opinion of Dr Burek that the presence of headaches increases the chance of mood or anxiety disorder being present. In other words his headaches are sequelae, we see it in the PTSD as well. Either way however we affirm the decision relating to tension type headache as no hypothesis has been raised to connect that particular condition with the applicant's operational service. That is not to say however as we have said that it is not a sequelae cervical spondylosis and/or his PTSD.
So far as pension at the special rate is concerned the criteria for the grant of pension at that rate are set forth in section 24 of the VEA. At the outset the veteran must be in receipt of pension in excess of 70 per cent and currently the applicant is as he is receiving pension at 80 per cent of the general rate. Then as per paragraph 24(i)(b) the veteran must be totally and permanently incapacitated that is to say his incapacity from war caused injury or disease or both is of such a nature is as of itself alone to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week and pursuant to subparagraph 24(i)(c) the veteran is by reason of incapacity from that war caused injury or war caused disease or both alone prevented from continuing to undertake remunerative work that the veteran was undertaking and is by reason thereof suffering a loss of salary or wages or of earnings on his or her own account that the veteran would not be suffering if the veteran were free of that incapacity.
Section 28 VEA provides inter alia:
In determining for the purposes of paragraph 24(i)(b) whether a veteran who is incapacitated from war caused injury or war caused disease or both is incapable of undertaking remunerative work.
The Commission and hence this Tribunal shall have regard to the following matters only:
(a)The vocational trade and professional skills, qualifications and experience of the veteran.
(b) The kinds of remunerative work which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake, and
(c) The degree to which the physical or mental impairment of the veteran as a result of the injury or th disease or both has reduced his capacity to undertake the kinds of remunerative work referred to in paragraph (b).
As was pointed out in Forbes v Repatriation Commission's 58 ALD 349 the so called "alone test" in paragraph 24(i)(c) must be considered in the terms considered originally by Burchett J in Cavell v Repatriation Commission 9 AAR 534 at 539 that is to say the word "alone" should not have substituted for it other words in the absence of ambiguity.
The word "alone" as it appears in paragraph 24(i)(c) requires a practical decision whether the veteran's loss of remunerative work is attributable to his service related incapacities and not to something else as well. That is a decision not to be made upon nice philosophical distinctions but with an eye to reality and as a matter in respect of which common sense is the proper guide.
In this matter the applicant's evidence was that he was born on 20 February 1944 and on 17 January 1961 he entered the RAAF as an electrical apprentice. He applied himself, he attained a matriculation standard while studying at night so he was then selected for pilot training and qualified as pilot in July 1967. We would only interpose in passing that in order to be selected for pilot training whilst a serving member of the RAAF it is clear that he would have had to have passed a psychological assessment. That is relevant in suggesting that perhaps his post traumatic stress disorder might be some other form of psychiatric illness but as was pointed out by psychiatrist, Dr Burek, any personality disorder starts early and should have been manifested in the teenage years. Certainly it would appear that as 1966 or so when he was selected for pilot training he was regarded as psychologically suitable.
Having qualified as a pilot he was posted to 37 Squadron which was flying Hercules aircraft between Australia to South Vietnam by way of Butterworth. He spent period 67/69 carrying out those flights either as a co-pilot or aircraft captain. He says that two out of the three trips were medivacs. Later he served at Phan Rang Bay in South Vietnam as an operationals officer before transferring to 9 Squadron which flew helicopters out of Vung Tau, 22 February 82 he left the RAAF to take up a position in the Air Safety Branch of the Department of Transport investigating air crashes. Eventually he was told to give that job away by a psychologist as he was suffering extreme stress. He carried out some investment work, apparently established a business as a investment consultant but as he put it "that job just was not me". He then rejoined the RAAF. It would appear that his service at this time in the RAAF was as a member of the RAAF reserve on full time duty.
There were various conflicts at times during his RAAF service however when he reached the retirement age of 55 which was in February 1999 he applied to stay in the reserve to age 60, this was an extension which permitted to members of the RAAF reserve. It would appear that initially that request met with the approbation of his immediate superiors.
At page 135 section 37 documents there is a section commander's comments and recommendation on his application to extend his service and suffice it to say his immediate superior said:
For operational considerations the continuing availability of Squadron Leader Unicomb for service in the RAAFAR is most desirable. His application for extension to CRA is strongly recommended.
However another superior did not quite agree because of sickness the applicant had and there is a report by a Group Captain Austin who we understand from the initials below his rank, it is a medical officer and under the heading of medical officer's comments the following:
Squadron Leader Unicomb currently holds an employment standard of A3PG1Z1 allocated by CIMB on 12/07/96. In light of the member's continuing medical problems he requires a further CIMFB to review this ES.
All of that really means very little but what we understand is that he really needed another medical board but suffice it to say the medical officer's comments conclude by stating:
At this point in time the member is unfit to undertake active flying duties and unfit to participate in field or operational duties.
Suffice it to say as a result of that medical report the applicant's application to stay in the RAAF was declined.
We would mention that at that time he was also making some inquiries regarding post service occupations with the Charles Stuart University which ran a course which permitted entry into the New South Wales Police service. That course and his intentions are referred to in his service medical documents, for example at page 16 Dr Hansen psychiatrist said:
Tomorrow he finds out about the police job.
Another report by Dr Hansen on or about 18 January 1999, says:
He has made the decision to leave RAAF and will stay on the reserve. New work will be with the police.
It would appear however that the applicant received certain advice from a former New South Wales police officer serving with RAAF Intelligence and as a result made further and better inquiries of the New South Wales Police Service and ascertained that if it came to the knowledge of that service as it most likely would when they checked with his former employer that he indeed had been suffering from a post traumatic stress disorder then he would not be employed. We might say that it would seem that the advice given to him which also included advice that he would probably not cope with the stress, was in our opinion very good advice.
There has been some debate in this matter as to the exact diagnosis of the applicant's psychiatric state. At the outset we say that we heard evidence from Dr Richard Burek psychiatrist who is the applicant's treating psychiatrist. He has seen the applicant since 1999 and has seen him on 38 occasions. Dr Burek has no doubts that the diagnosis is post traumatic stress disorder. He gave reasons which we have referred to earlier for rejecting a diagnosis of personality disorder. He also does not believe the applicant currently has bereavement disorder.
In a report dated 27 August 1999 Dr Burek opined that the applicant has a post traumatic stress disorder with secondary major depression. At that stage he had taken a history from the applicant as to his service in South Vietnam and various events on that service and what we consider to be relevant and important is that Dr Burek obtained a second opinion from one of his colleagues and it was as a result of that the diagnosis was made.
In a report dated 27 June 2002 Dr Burek says:
Mr Unicomb has been my patient for three years for three years since I first met him on 13 May 1999. I have interviewed him on 38 occasions. Mr Unicomb has chronic post traumatic stress disorder and major depression in partial remission. These psychiatric disorders wax and wane but he will never recover.
The diagnosis of post traumatic stress disorder was initially rejected by Dr Shand psychiatrist who saw the applicant on behalf of the respondent. Initially Dr Shand opined that the applicant suffered a personality disorder of the obsessive compulsive type. As stated earlier we accept Dr Burek's evidence that if it was a personality disorder it should have manifested itself at an earlier date.
In a later report dated 17 July 2002 which became exhibit R6 Dr Shand said:
As a result I do not discard the diagnosis of personality disorder with depression chronic bereavement disorder which I prefer to post traumatic stress disorder with depression. Unless the stressors mentioned by Dr Burek can be validated by the details of his active service in Vietnam, if that can be done a diagnosis of post traumatic stress disorder with depression/chronic bereavement disorder personality disorder may be the best fit.
Suffice it to say that there has not been a scintilla of evidence produced before us which in any way casts doubts on the applicant's history of events that occurred to him in South Vietnam.
So far as any bereavement disorder is concerned a clinical summary by another medical officer dated May 1995 says:
Psychiatric opinion Dr Boulton suggests that the member has now resolved his problem and the prognosis is good.
That referred to pathological grief reaction following the death of the applicant's wife.
There is also another comment there about:
A review of Squadron Leader Unicomb's notes reveal one episode of early endogenous depression in 1969 the treatment for which was a holiday.
What is amazing about that is that we cannot find that particular reference in the applicant's service documents. It could be unfortunate if the respondent was not making available to the Tribunal all the service documents of an applicant. However we accept the evidence of Dr Burek that a holiday is not the treatment for endogenous depression and we consider that is in reality a mislabelling of a condition which the applicant states that occurred when he was under a considerable amount of work stress flying between Australia and South Vietnam. It is true he was told to take a holiday and that apparently cured whatever ailed him at that time.
So far as the bereavement disorder is concerned we would refer to the opinion of Dr Lambert psychiatrist on 27 November 1997 which reads inter alia:
Has long standing depression, major depression with a significant anxiety component. This may be a result of experiences in Vietnam and exacerbated by loss of wife. I do not see this as a grief reaction rather the loss of his wife represents the loss of a major support figure.
And as we have stated at page 43 his psychiatrist Dr Wilton suggested that the member had now resolved the problem following the death of his wife. Dr Burek does not consider he suffers from a bereavement disorder.
Where it comes to any conflict between the opinions of Dr Shand and Dr Burek on the other hand we prefer the opinions of Dr Burek as the treating psychiatrist and a psychiatrist who has seen the applicant on 38 occasions as opposed to Dr Shand's once. We note in any event that Dr Shand does not disagree with the opinions of Dr Burek if the history given by the applicant as to events in South Vietnam is accepted. We therefore find on the balance of probability that the applicant does suffer from a post traumatic stress disorder with a secondary major depression.
The major illness in this particular case is of course the applicant's PTSD and depression. This has led to irritability. The applicant's evidence was that he was in conflict with superiors at the time he left the RAAF. At that time he believed he could have done a less stressful job with the RAAF but although he referred at one stage to teaching he did not believe he could teach for three days a week. He would have difficulty in front of a classroom in raising his arm to write on a chalkboard and this is a factor of his cervical spondylosis. So far as any investment business is concerned he says he found it depressing, he could not go back, he found it too depressing.
The opinion of Dr Burek is that since April 27 1999 the applicant would not be capable of working more than 8 hours a week, he is not fit for his previous employment, his previous work was highly skilled and specialised demanding high levels of executive function in judgement and coordinating of technologic and human team effort. These complex skills have all been grossly impaired by his psychiatric condition which have arisen from his war related service. Dr Burek's opinion is that his incapacity result solely from accepted disabilities and that has not changed since 27 April 1999.
Dr Shand in his opinion of 12 October 2001 exhibit R4 says:
In view of the rareness of the massive migraine headaches the headaches themselves would not compromise ability to work more than temporarily. It is much more likely that the veteran's personality disorders with associated rages and behaviour would more seriously handicap his ability to work 20 hours per week and probably 8 hours a week. If depression is added to that he would be incapable of working 8 hours per week.
Dr Burns gives in his opinion of 12 September 2001 exhibit R2 notes:
He relates his major problem is anger. He has a great deal of difficulty in putting up with people he considers are fools. He likes to be in control and he likes people to do things the correct way. He had one episode where police were involved last year after a minor accident outside his house. He states he has a burning sensation across the base of his neck into his shoulders on a regular basis. He has several episodes of pain in his right shoulder into the right jaw. He reports pain on prolonged sitting after about 10 to 15 minutes. He can drive for up to 2 hours.
Dr Burns later at page 3 of his reports again refers to the difficulty the applicant had coping with superiors. He said that he believed that if the correct work was available to him he would have been able to remain in the RAAF but as stated he was discharged from the RAAF on medical grounds.
Although Dr Burns considers the applicant does have some retained work capacity he can see that the job the applicant had in 1999 was beyond his capacity due to stress. Dr Burns thinks that he can work however that would appear to be contrary to the opinion of Dr Burek and also to Dr Shand and it seems to us that the psychiatric disability is the major disability in this matter.
The applicant does have some disability with his lower back following a fall. In a report to his then solicitors dated 25 May 2001 Dr Isaacs orthopaedic surgeon says:
His capacity for work has been adversely affected and I do not think that he will be able to perform any work which involves heavy lifting, constant bending, sitting or standing in one position for a prolonged period, bending forwards frequently, working in confined spaces or climbing up and down ladders.
That report must of course be read in conjunction with section 28 VEA and we note that the applicant has never ever engaged in labouring type work. Indeed as Dr Burns says in his report of 24 June 2002 exhibit R3:
Additional I note that Dr Isaacs an orthopaedic surgeon in his report of 25 May 2001 stated that Mr Unicomb's low back symptoms would affect his capacity to work. The area that he would be affected in though would be for heavy work. Mr Unicomb doe snot have a history of being a manual labourer. In the past he has worked in sedentary and office based areas.
We find therefore that any back incapacity suffered by the applicant has no affect in preventing him from undertaking work for which he was ordinarily capable.
There was some suggestion as well that because of an operation his neck conditions which also affect his arm are no longer as severe as they one were. In a report of 21 November 2001 Dr John Christie neurosurgeon states:
The neck symptoms certainly seem to be significantly interfering with his ability to get on with life. He has had a recent MRI scan which shows quite widespread degenerative change.
In a further report dated 4 December 2001 to the applicant's general practitioner Dr Christie said:
I explained to him that it would be possible to do a procedure to open up the nerve exit foramen at C5/6 on the right and that might help the symptoms in his right arm. I emphasised to him however that it was unlikely that such a procedure would make much difference to his neck pain and headaches and that I did not really have an operation that would be effective for these.
Later on 7 January 2002 Dr Christie reported:
Mr Unicomb came into Lingard Hospital last Friday 4 January and I decompressed his right C6 never root. At this stage he seems to have had a worthwhile result from that and he should be going home from hospital in the next day or so.
A further report dated 18 February 2002 Dr Christie reports:
That the applicant reported a worthwhile result and said the pain in his arm had resolved. He is moving his neck quite well.
But significantly, Dr Christie stated:
He still gets some pain in the neck and shoulder region which is not surprising.
That must be referred back to the earlier report by Dr Christie where he said:
It is highly unlikely such a procedure would make much difference to his neck pain and headaches.
Therefore we find that although the applicant has had an operation it does not affect his inability to work.
The only other matters we need to consider are, that as was pointed out by Spender J in Hall v Repatriation Commission 33 ALD 454:
A correct procedure is to consider entitlement up to the date of the Tribunal's decision and that if his condition has deteriorated since he left the RAAF then that must be taken into account.
More significant however considering the severity of the applicant's psychiatric illness are the remarks of Purvis J, as he then was, in the matter of Rogers v Repatriation Commission unreported Tribunal decision number 5374. At page 27 of his unreported decision His Honour said:
It might well be that within the mind of the veteran the effect of the personality disorder for example, belligerency is not to the veteran overly important. Its effect however upon prospective employers and others is very important in the context of employability thus it is the view of the Tribunal that it is the effect upon others of a disease or injury as well as the effect upon the veteran that the decision maker is to look.
In this matter it seems clear to us from the psychiatric reports and the evidence of the applicant that even if the applicant were fortunate enough to find an employer who would employ him with his various disabilities his belligerency and the problems referred to earlier would make him well nigh unemployable in any event.
Having regard to the whole of the material before us in this matter we find that the applicant does meet the criteria for the grant of pension at the special rate and that pension will be payable to the applicant as and from 27 April 1999.
0
0
0