Watkin and Repatriation Commission - [2001] AATA 1005

DECISION AND REASONS FOR DECISION [2001] AATA 1005

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1078

VETERANS' APPEALS DIVISION       )
           Re      MARIE E. WATKIN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member Ms M Carstairs, Member

Date10 December 2001
PlaceMelbourne

Decision 1. The Tribunal, as agreed by the parties, varies the decision of the Veterans' Review Board made 11 August 1999, in substitution for the decision of the Repatriation Commission as to assessment made on 4 March 1998, to provide that Mrs Watkin is entitled to pension at 100% of the General rate from 20 July 1997. 2. The Tribunal finds that Mrs Watkin is not entitled to payment of pension under s 23 or s 24 of the Veterans' Entitlements Act 1986.
(sgd) Joan Dwyer

Senior Member

SPECIAL RATE PENSION OR INTERMEDIATE RATE PENSION – whether applicant entitled in respect of defence-caused injuries sustained in a vehicle accident in which she was involved as a nurse escorting a patient in an ambulance – accepted injuries include post-traumatic stress disorder and condition affecting neck, knees, back and hips – whether totally and permanently incapacitated – whether incapacity from defence-caused injury or disease of itself alone renders veteran incapable of undertaking remunerative work for more than 8 or more than 20 hours a week – whether applicant could return to work she had done – role of post-natal depression and family responsibilities – issues as to exaggeration of incapacity – permanence – whether veteran's incapacity from defence related injury and disease alone prevented from continuing to engage in remunerative work she was undertaking – not entitled to special or intermediate rate pension
Veterans' Entitlements Act 1986 ss 24(1), (2), 73

McDonald and Director General of Social Security (1984) 6 ALD 6

REASONS FOR DECISION

10 December 2001 Mrs Joan Dwyer, Senior Member Mr A Argent, Member Ms M Carstairs, Member

This is an application for review of a reviewable decision of the Veterans' Review Board ("the VRB") made 11 August 1999. It set aside a decision of the Repatriation Commission made 4 March 1998 and, in substitution, decided that Mrs Watkin was entitled to pension at 90% of the general rate from 20 July 1997 in respect of the accepted conditions of muscular strain of neck, chronic back strain, chondromalacia patellae, bilateral sprain or strain of the hips and post-traumatic stress disorder. The dates when decisions were made accepting those conditions are as follows:
DISABILITY DATE OF DECISION
Muscular strain of neck 19/04/90
Bilateral chondromalacia patellae 19/04/90
Chronic back strain 06/08/93
Bilateral sprain or strain of the hips 22/08/97
Post traumatic stress disorder 04/03/98
At the hearing Mr D De Marchi, solicitor, appeared for Mrs Watkin. Ms J McCulloch, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mrs Watkin gave evidence. Evidence on her behalf was given by Dr Parkin, psychiatrist, who gave evidence over the telephone, and by Dr Stone, occupational and rehabilitation physician and by Mrs Watkin's local doctor, Dr Hanson, who gave evidence over the telephone. The respondent called Dr Ingpen, rheumatologist and Dr Walton, psychiatrist. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"), and also the exhibits tendered during the hearing.
Mrs Watkin served in the Australian Army from 12 June 1985 to 11 June 1988 as Private M E Gurkin. That service is "defence service" as defined in s 69(1) of the Veterans' Entitlements Act 1986 ("the Act"). During her service Mrs Watkin trained as a medical nursing assistant.
The only issue before the Tribunal is assessment. Mrs Watkin's accepted conditions all relate to a vehicle accident in which she was involved on 26 February 1988, when she was an Army nurse, travelling in an ambulance escorting a patient. There is very little detail in the material before the Tribunal as to that vehicle accident. Dr Chong, a psychiatrist who saw Mrs Watkin in December 1997, obtained the following history which is set out in his report of 5 December 1997 (T16 p66):
Mrs Watkin told me that she was involved in a car accident in February 1988 when she was working in the Army as a nurse, transporting a patient to hospital in an ambulance. She was thrown around in the ambulance and suffered a number of injuries to her knees, hip, back and neck as well as multiple bruises and concussion, but there was no obvious bone injury. She had received some treatments from the Army for her injuries and later discharged from the Army not long after the accident. She has since had a number of operations on her knees and has continued to suffer pain and restriction of movements from these injuries. Ms Watkin has also become depressed as a result of the emotional trauma and stress of the accident and the continued pains and sufferings of her injuries.
Ms Watkin has been depressed, anxious and irritable. She has been tearfull [sic] at times, feeling angry about the past and has disturbed sleep. She has poor concentration and is troubled by obsessive ruminating thoughts and fear about the accident. She still has nightmares about the accident and can still smell the leaking oil and the fire at the accident scene. Apparently the ambulance in which she was travelling and got injured, caught fire soon after the accident.
The Tribunal was surprised that the material before it did not include the Army medical records or the Police report relating to the incident. Nor did the material contain any detail as to the medical downgrading which apparently occurred shortly after the accident.
The T documents, at page 19, show that Mrs Watkin was injured accidentally on 26 February 1988 and that her condition was described as satisfactory on that day. The Medical Board Examination Record dated 31 May 1988, (T docs p26), shows a downgrading from FE to BE with the following restrictions "Running and PT own pace. Avoid heavy lifting/repetitive use of wrists" Under "diagnoses of disabilities" it states "Wrist pains. Knee pains ? CMP" [chondromalacia patellae]. A note in respect of the knee pain describes it as follows: "Ongoing bilateral knee pain post MCA Feb 88. O/E c/w CMP – retropatellar knee pain. Suggest ongoing physio." The bilateral wrist pain seems to have pre-dated the motor car accident. There is a note (T docs p25) in respect of that condition "Bilateral wrist pain – Ix normal – No definite diagnosis – ongoing pain with minimal activity. See F. Med 6 27/7/87". Thus we find that the two conditions which caused the medical downgrading in May 1988, two months after the vehicle accident, were wrist pain, which was not related to the accident, and knee pains which were.
Mrs Watkin was discharged from the Army on 11 June 1988, at the end of her three year period of service. The medical discharge questionnaire and report (T docs pp24 and 25) refers to the motor car accident. It states: "Feb 88 Neck strain injury now recovered. Bilateral retropatellar knee pains. Normal X-rays. Problems with walking and running. Poor sleep pattern/nightmares since MCA".
The matter at issue is whether or not Mrs Watkin is entitled to special rate pension, or to intermediate rate pension. The qualification for special rate pension is set out in s 24(1) and (2) of the Act as follows: [read in via e-media]
24 Special rate of pension
(1)       This section applies to a veteran if:
(aa)the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab)the veteran had not yet turned 65 when the claim or application was made; and
(a)either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(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; and
(d)section 25 does not apply to the veteran.
(2)       For the purpose of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)     the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)     the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
Sections 23 and 24 of the Act are made applicable to people who have defence service by s 73 of the Act. It provides: [read in via e-media]
73 Application of Divisions 4 and 5 of Part II
(1)The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.
(2)For the purposes of the application of the provisions of Divisions 4 and 5 of Part II as provided in subsection (1):
(a)a reference in those provisions to a war-caused injury shall be read as a reference to a defence-caused injury;
(b)a reference in those provisions to a war-caused disease shall be read as a reference to a defence-caused disease;
(c)a reference in those provisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force; and
(d)a reference in those provisions to Part II shall be read as a reference to Part IV.
The relevant parts for consideration in this matter are s 24(1)(b) and (c), and 24(2)(b), on which Mr De Marchi relied. The provisions in s 23 in respect of intermediate rate pension are similar, except that it is payable where a veteran is "incapable of undertaking remunerative work otherwise than on a part-time basis or intermittently".
s 24(1)(b) or s 23(1)(b)
Mrs Watkin is in receipt of pension at 100% of the general rate, thus s 24(1)(a) is satisfied. The first issue is therefore whether Mrs Watkin is totally and permanently incapacitated, that is to say whether her incapacity from defence-caused injuries or defence-caused disease, or both, is of such a nature as, of itself alone, to render her incapable of undertaking remunerative work for periods aggregating more than 8 hours per week, or, under s 23(1)(b), of undertaking such work otherwise than on a part-time basis or intermittently. There must be an element of permanence about any such incapacity.

the extent of incapacity

Mrs Watkin in her evidence said that she was incapable of undertaking remunerative work either at all or otherwise than on a part-time basis or intermittently because of, "constant pain. Waking up in the morning with pins and needles. Getting in the car and driving somewhere, having to talk to people" (trans. p23). She did not explain what is different now from the situation during the period between the car accident in February 1988, and November 1994, when she worked full-time in nursing and clerical positions and as a phlebotomist, taking blood for blood tests in pathology clinics. From January 1995 Mrs Watkin had 8 months off on compensation for a right knee injury. During that period she had knee surgery. The evidence is that since the surgery her right knee is improved. In September 1995 Mrs Watkin and a friend started a small business doing nail enhancements in a beauty parlour. Mrs Watkin, from the start of that business only worked on a part-time basis, usually only two or three four hour sessions a week on a Tuesday, Thursday evening and Saturday morning.
The only evidence in the service medical records as to restrictions resulting from the car accident in February 1988 is, as set out in paragraph 6 above, that Mrs Watkin was to do "running and PT at her own pace". Mrs Watkin provided a statement of her employment history after discharge from the Army in June 1988, as follows(A1):
JUN 88          TEMP AGENCIES INC: Drake Medox NURSING              SUNSHINE NURSING AGENCIES CLERK          3 OR 4 MORE – UNSURE OF   NAMES SORRY PLACES INCLUDED RMH. RCH. VIC ROADS NEWPORT W.G.H. WATSONIA REHAB.
? MAY 90       DEPT CLK ROYAL MELBOURNE HOSP
MAY 90 DEC 90        PHLEB/TYPIST SPORTS & PREVENTATIVE MEDICINE CLINIC
FEB 91 OCT 92        PHLEBOTOMIST ELVIRA PETRIKAS PATHOLOGY
NOV 92 JUN/JULY 94          PHLEBOTOMIST TREZISE PATHOLOGY
JULY 94 NOV 94       CLERK SPINKS REALTY 3 MONTH CONTRACT
NOV 94 JAN 95        WAITRESS KNOX CLUB (FILL IN JOB)
JAN 95 AUG 95        WORKCOVER KNEE INJURY AT KNOX CLUB
SEP 95 FEB 97         SELF-EMPLOYED NAIL TECHNICIAN – IN PARTNERSHIP WITH ROBYN SELVEY "BASICALLY NAILS" – STILL GOING TO DATE
In her evidence Mrs Watkin explained that, although she took up nursing duties with temporary agencies after her Army discharge in June 1988, she had some difficulty performing that work due to the physical lifting and walking involved. She said that she gave up nursing and started doing hospital clerical work, which suited her better. She was with the Royal Melbourne Hospital typing medical reports, for approximately eight months. She left, not because she found the work physically difficult, but, as she described it, because of personal difficulties with the doctors in a particular department to which she was transferred.
Mrs Watkin said she then worked again as a typist, at South Yarra Sport and Medical Centre, where as well as typing reports, she did venepuncture. She had some pain in her neck radiating to her arm at that time, but it subsequently cleared up. From February 1991 until October 1992 Mrs Watkin worked as a phlebotomist, at Elvira Petrikas Pathology. She did venepuncture, dressings and a little front desk work. She said that employment was satisfactory. She explained that she left because she moved her home from South Yarra to Ferntree Gully, and it was too far for her to drive from Ferntree Gully to Northcote, and, because of her physical problems, she was restricted in using public transport. She then took similar work at Trezise Pathology at Mountaingate, Ferntree Gully, where she again worked for almost two years. When she was working in the clinic she found that position very convenient, but after a time she was put on home visits. She said that she could not cope with the driving, but was not able to return to her previous position in the clinic, as that work was being done by a girl who had two small children. It was not clear from her evidence whether Mrs Watkin had explained to Trezise Pathology that she had difficulty with the driving aspect of the duties.
Mrs Watkin said that she had been very good at venepuncture. That was work which used her nursing training. After she left Trezise Pathology she seems to have accepted less rewarding work. The next position she took was a three month contract with Spinks Realty. Her duties were to take receipts for rental property, to do some typing and to prepare the monthly bank statements, but she only had a three months contract because of a restructure which the firm was undertaking. Mrs Watkin described having some difficulty standing up, sitting down and walking around the office, but she did not really explain what caused that difficulty. At the end of three months Mrs Watkin's contract came to an end. She then took a temporary job as a waitress at the Knox Club where she was cleaning tables, emptying ashtrays and bringing drinks. Unfortunately, she had a fall and injured her knee at Knox Club. She claimed workers' compensation for that aggravation of her service related disability. After nine months on compensation, during which Mrs Watkin underwent surgery on her right knee, she and a partner started their own small business performing nail enhancements in September 1995. She gave that business up on 27 February 1997 (T docs p37).
Mrs Watkin said that she had taken classes in nail enhancement while she was working at Trezise Pathology and that she and a friend agreed to start a business where they simply rented two tables in a hairdressing salon. The reason she started the business was to fit in with her plans to start a family. She was asked (trans. p102):
And what were your intentions when you started to have a family yourself?---Well, that's why I started the business because my business partner, Robyn, and I were going to do shifts. When I was working she would have Jack and when I was working, no – when I was working she would have Jack and when she worked I had him.

Mrs Watkin and her partner hoped one day to build the business up to be a one-stop beauty shop and to have their own premises. Mrs Watkin said that she had pain in her neck from bending over the table to apply nail enhancements. After a time she found she could not continue with that work so she gave it up and dissolved the partnership.

The evidence does not satisfy us that Mrs Watkin could not return to work as a nurse doing venepuncture. She said "they are screaming for nurses for venepuncture. Absolutely screaming for it." (trans. p21). The Tribunal pointed out to Mrs Watkin that she had not described having any trouble performing venepuncture. She then said "leaning over the desk and leaning over the chair, getting up and down to do the ECG's." When the Tribunal commented that Mrs Watkin had not mentioned those matters earlier, when explaining why she left Elvira Petrikas and Trezise Pathology, she replied: "I am sorry, I didn't make that very clear, then. It was also those reasons." (trans. p21).
On further questioning from Mr De Marchi, Mrs Watkin said that she was getting backaches, headaches and neck aches from leaning over and taking blood, but she explained these problems arose because normal chairs were used. She said that now big chairs with arm rests are used, and she implied that they are more suitable. Mrs Watkin said that from June 1988 she had been taking pain killers and also self medicating by drinking large amounts of port. She said she was not then on mood stabilizers as she is at present. We are not satisfied that Mrs Watkin had significant difficulty performing the duties of a phlebotomist. We found her evidence as to trouble performing venepuncture less persuasive than the explanations for leaving the pathology clinics she had first given in evidence. We consider that if she had significant trouble leaning forward in her work as a phlebotomist, she would not have continued that work for four years with two different employees. Further she would not have planned to go into nail enhancement as an alternative career, because that work also requires the technician to lean forward.

Ms McCulloch asked Mrs Watkin about her intentions in regard to future employment. She said: "Employers don't want me. I give them my medical history and they say, Mm fine, we don't have a position for you." (trans. p31). However Mrs Watkin said that she had been offered a position with Dorevitch Pathology, the firm that had taken over Trezise Pathology, but had not taken that position. She said she applied for and was offered the position in late 2000, eight to twelve months before the first day of hearing of this matter. She said she refused the position because she could not get a letter from the Department of Veterans' Affairs saying they would accept liability for any future injuries. She said she was prepared to work if she could have got the requested letter (trans. p33). Mrs Watkin did not explain why she needed anything more than the decisions advising of the acceptance of her accepted conditions (Those decisions are at T4 p27, T5 p29, T10 pp46-49 and T17 pp68-72).
Mrs Watkin said that she would not take the position with Dorevitch Pathology if it were offered again. She specified the factors that she claimed are now stopping her working. She referred to an inability to get up in the morning, problems driving to work, changes of mood, the fact that she can only take a limited amount of pressure, and the fact that it does not take much to make her cry. She also said that physical activities like lifting, walking, squatting, driving, trying to find a car park and trying to get dressed cause her significant problems. She added that an employer would need to be prepared to let her go home early as required or to "get a phone call every morning, I can't come in to-day" (trans. p39).
Mrs Watkin did present in an upset and distressed manner as she gave evidence. However, all that shows, as Dr Stone said, when Mr De Marchi asked him to comment on Mrs Watkins demeanour in the hearing room, is "she is obviously distressed at the moment" (trans. p65). It does not provide the reason for the distress, nor a medical diagnosis. Mrs Watkin agreed with a suggestion from the Tribunal that she could not have possibly have presented in that way in the years 1990 to 1994 when she held employment with two pathology clinics for close to two years each.
When considering a claim for special rate or intermediate rate pension the Tribunal must be satisfied that the applicant's incapacity from war-caused or defence-caused injury or disease is of such a nature as "of itself alone", to render the applicant incapable of undertaking remunerative work for the specified periods.
Mrs Watkin's evidence did not satisfy us of that matter. She said she could not resume work, but we are not satisfied that incapacity from defence-caused injury or disease alone, does render her as incapacitated as she indicated, nor that her incapacity has the necessary quality of permanence.
As to the organic injury, the evidence of Dr Stone and Dr Ingpen was consistent in that they both said that Mrs Watkin's major incapacity for work is not due to organic injury, but to her psychological state. Dr Stone concluded in his report (A3 pp10-11):
It seemed the major problem that was present when Mrs Watkin was with me was the PTSD.
I considered the problems she had with her neck would only be a problem with work if she required to undertake work involving flexion of the cervical spine.
The problems she has with her left knee are quite minor, but she does have ongoing pain and a feeling of insecurity of the right knee. This would prevent her being able to work in a situation where she was required to frequently use steps, or to walk over uneven ground.
Her chronic back strain is not a problem so far as the upper of her two complaints is concerned. However, the lower level, predominantly at the lumbo-sacral junction, does restrict her ability to sit and stand. She has to be able to frequently vary her posture, and this would have a substantial impact upon her workability.
The right trochanteric bursitis would have only have minimal impact upon workability.
The post traumatic stress disorder as mentioned at the start of this section of my report, appeared to be of such severity that it would have a substantial impact upon workability.
It is the cumulative impact of these problems which renders Mrs Watkin a very difficult return to work prospect. I do not believe she could return to pathology work, as this does involve cervical flexion. I have had nurses with this type of situation in the past, and it is virtually impossible to overcome cervical flexion in these circumstances.
Dr Stone said that from a physical point of view there would be a range of duties that Mrs Watkin could perform. The main physical requirement he would suggest would be to avoid static loading of the neck. He agreed with the Tribunal that it was surprising that she had decided to go into nail enhancement if she had had neck problems while she was doing the venepuncture. Dr Stone did not address the fact that Mrs Watkin had apparently worked satisfactorily in pathology clinics for almost four years, and had been so little aware of problems with her neck as a result of that work, that she had chosen to start her own nail enhancement business, even though that work requires cervical flexion. Dr Stone said that Mrs Watkin's qualifications both in the clerical and the nursing field are strong positives, but the negatives are her psychiatric state and her physical injuries.
Dr Stone explained that he thought psychological factors were leading to a heightened appreciation of pain. He said he saw no indication of anything other than soft tissue injuries, but he felt that Mrs Watkin had very considerable psychiatric problems. The Tribunal asked Dr Stone whether he did not think Mrs Watkin might improve significantly with psychiatric treatment, which she has not had since mid 1998. Dr Stone said he would prefer to leave that to a psychiatrist.
Dr Ingpen gave evidence on behalf of the respondent. He saw Mrs Watkin on 10 November 1999. He wrote in his report (R2) that on examination there was minor diffuse limitation of neck movement, which in evidence he described as at the level of discomfort. He noted diffuse tenderness over the posterior supporting structures around the level of C5,6 with some referral tenderness into the shoulder girdles. Both knee joints demonstrated normal range of movement. He noted tenderness at the lumbo sacral junction extending into both buttocks and the lateral aspect of both hips.
Dr Ingpen wrote that despite discomfort there was no defined musculo-sketal abnormality which would prevent Mrs Watkin working 20 hours per week in areas such as pathology, collecting or a nail enhancement business. He said it would be unreasonable to expect her to work in hands on nursing. He added "the reasons for her ceasing to work are not clear and have not been defined, but the probability is that there are domestic influences in this decision". Dr Ingpen arranged for X-rays of the cervical and lumbar spine, and in a further report of 22 March 2000, he wrote that they showed very minor degenerative changes consistent with the age group but not consistent with any specific injury pattern. He said he saw no evidence to alter his earlier report.
In his evidence Dr Ingpen repeated that he thought Mrs Watkin should be able to collect blood in a pathology laboratory, but not to drive around as part of her daily work. He said, as had Dr Stone, that she could do secretarial work if she had an ergonomically designed work place, and he added that she could do work which involved her leaning forward, provided there was some neck movement involved.
The Tribunal told Dr Ingpen that Mrs Watkin had given evidence that she took the following medication on a daily basis:
Endep 50 mg 3 at night 1 or 2 at night
Diazepam        5 mg
Clinoril 100 mg          4 at night
Pepcidine       20 mg 1 at night
Sennetabs      75 mg 2 at night
Panadeine Forte                   8-12 a day
Mrs Watkin told the Tribunal that all the tablets were prescribed. The Tribunal asked Dr Ingpen to comment on that medication regime. He said that for anybody to take eight to 12 Panadeine Forte a day was excessive, and showed an altered pain mechanism. He described that as a state where pain perception is out of proportion to observed abnormalities. He said it is linked with psychological stress or other illness. He said that emotional stress appears to be the major amplifier of pain.
There was nothing in the evidence that satisfied us that due to physical injuries Mrs Watkin could not return to working 20 hours a week or more, collecting blood in a pathology laboratory or doing a combination of that work and front desk work, together with dressing wounds and typing reports, as she said she had done for Elvira Petrikas. Dr Ingpen and Dr Stone both said that there was no musculo-skeletal abnormality which would prevent Mrs Watkin working 20 hours a week in suitable work such as clerical duties. Dr Ingpen said venepuncture and nail enhancement, would be suitable. Dr Stone excluded pathology work as he said it does involve cervical flexion.
We prefer Dr Ingpen's evidence on this issue. We consider Dr Stone did not pay sufficient attention to Mrs Watkin's history of working as a phlebotomist in for two different pathology clinics for almost two years each. We do not accept that the work was unsuitable. If it was, we doubt if Mrs Watkin would have stayed almost two years in each position. Similarly, the fact that after she left one pathology clinic because she moved, she sought similar work in another clinic closer to home, also indicates that the duties were suitable. In addition we find that if leaning forward to take blood or do dressings caused significant neck pain, Mrs Watkin would not have chosen to go into nail enhancement which also requires a person to lean forward to perform the work.
In regard to Mrs Watkin's psychological problems the evidence is that her mental state has deteriorated since the birth of her first child. She first saw a psychiatrist shortly after the birth on 5 October 1996. In early 1997 Mrs Watkin and the baby were admitted to the Queen Elizabeth Mother and Baby Unit. It was while in that unit that Mrs Watkin saw a psychiatrist, Dr Cochrane, who prescribed anti-depressants for the first time. Mrs Watkin's second child was born on 14 September 1998.
Mrs Watkin, in her evidence on the first day of hearing, did not agree that she had suffered post-natal depression. However when Dr Hanson gave evidence he read the Tribunal a report from Dr Cochrane dated 4 February 1997 in which she diagnosed post-natal depression and stated she had prescribed medication. There is no evidence that Mrs Watkin had been prescribed medication for a psychiatric condition prior to that admission to the Queen Elizabeth Mother and Baby Unit in January 1997. That was nine years after the motor vehicle accident. Mrs Watkin did not mention having problems with motivation and attending work while she was in the workforce. There is evidence that sleep deprivation after the birth of her first child played a part in the symptoms with which she presented in January 1997, prior to the diagnosis of post-natal depression.
Dr Hanson said that he had known Mrs Watkin when she worked at Tresize Pathology and her "degree of disability wasn't as great then; it seems a lot greater now" (trans. p111). He said he did not know why that was. He suggested that psychological factors could have aggravated the pain because chronic pain causes depression and anxiety (trans. p111). He said "why that worsened a few years ago I don't know but whatever the reason I'm sure we're in that vicious cycle now". Dr Hanson said he did not consider Mrs Watkin had any capacity for work now. He saw her as "unemployable at the moment" (trans. p108).
Dr Hanson agreed with Ms McCulloch that the post-natal depression Mrs Watkin suffered at the time of her two week admission to Queen Elizabeth Mother and Baby Unit could have had an impact on her present condition. He said he would not have thought it would have had a lasting impact but it is hard to say.
The notes from Dr Hanson's clinic showed that apart from a complaint of musculo-skeletal pain in June 1996 during Mrs Watkin's pregnancy, there was no complaint of any symptoms of pain or depression, which could be related to the ambulance accident until February 1997. At that time, Zoloft was prescribed after the diagnosis of post-natal depression had been made by Dr Cochrane.
Dr Cochrane's report to Dr Hanson of 4 February 1997 also made no reference to any psychiatric problems pre-dating Jack's birth. Nor did it mention the ambulance accident. The first mention of chronic pain syndrome or of investigation of musculo-skeletal pain, in Dr Hanson's notes seems to have been around August 1997 when Dr Hanson referred Mrs Watkin to Dr Newman, a rheumatologist. He made the diagnosis of chronic pain syndrome and Dr Hanson then referred Mrs Watkin to Dr Chong on 13 October 1997. He diagnosed PTSD in a report of 5 December 1997 to the Department of Veterans' Affairs (T docs pp66 and 67). That condition was accepted as defence-caused on 4 March 1998. The acceptance dated back to 20 July 1997.
When the Tribunal asked Dr Hanson why he had not arranged follow up psychiatric treatment for Mrs Watkin, after Dr Chong stopped seeing her in mid 1998 he found he had given a further referral in September/October 2000, but Mrs Watkin had not followed it up. His note of 4 October 2000 read "Hasn't booked for Vermont, patient not keen to, okay while well" (trans. p122). He said "So she must have improved at the time so I did not sort of push her to go ahead with that referral since she had improved" (trans. p122).
Mr De Marchi asked Dr Hanson what he thought was the relationship between the PTSD and the post-natal depression. He replied (trans. p123):
Yes, this is where it gets difficult to sort of quantify what contribution each is making. I mean, myself, I had certainly considered that it was the post-traumatic stress disorder that was by far the biggest factor now, that the post-natal depression was not really an active problem and hadn't been for – well, some time now, I couldn't put an exact figure on it – certainly for the last couple of years, anyway, I would have thought. It's very difficult to sort of pin down or to quantify it exactly but I think myself that the post-traumatic disorder – post traumatic stress disorder was by far the bigger contributor at this stage.
Dr Hanson said it was his opinion that Mrs Watkin's current incapacity for work was mainly related to her physical conditions and that her psychological problems were related to pain from the physical conditions.
We do not find that Mrs Watkin's physical condition prevents her working full-time, although we do find that it creates some restrictions as to the work she can do. Nor do we find that Mrs Watkin's psychological problems are due to a chronic pain syndrome resulting from her physical injuries alone. The history of the first onset of that condition in 1997, nine years after the ambulance accident we find makes that very unlikely. We note that neither the physical injuries nor the ambulance accident were mentioned to Dr Hanson or other doctors at his clinic in attendances between 1993 and June 1996, when musculo-skeletal pain was first mentioned. At that time the musculo-skeletal pain was not related to injuries sustained in the accident. It was only in April 1997 that Mrs Watkin told Dr Hanson about the accident.
It is necessary to consider the psychiatric evidence, to see whether we find that the combination of defence-caused physical and psychological problems makes Mrs Watkin "totally and permanently incapacitated" as referred to in s 24(1)(b) or s 23(1)(b) of the Act.
Dr Parkin is a psychiatrist. He examined Mrs Watkin, at the request of her solicitor, on 24 March 2000. He had previously seen her at the request of a person from Pascoe Vale RSL who was then assisting her in making her claim. At the time of the first consultation, Dr Parkin diagnosed Mrs Watkin as having PTSD and, using the Guide to the Assessment of Rate of Pension ("GARP"), gave a rating of 38 points.
On the second occasion he saw her, in March 2000, Dr Parkin noted some improvement. He gave a rating of 33 impairment points. He set out the history of current symptoms as follows (A4 pp2-3):
She is now a full-time mother with an 18 month old girl and a 3 1/2 year old boy. She has left the nail business. When she was working there she was working Thursdays 5-9, and Saturdays 9-1, as well as being called in some Tuesdays. She stopped working there because of bending down and sitting and she could not cope. She would be in tears after doing a set of nails. Her back and arms were sore. She found she could not concentrate. She got to the point where she was doing shocking nails and losing business because of it. She would snap and she was irritable. Getting to and from work was a real problem because of the reminders of driving. She finds cars are where she has most of her problems. She will not let any one else drive the kids around.
Dr Parkin described the impact of disabilities on Mrs Watkin's work ability as follows(A4 p5):
Looking entirely at her Post-traumatic Stress Disorder she remains capable of working somewhere between eight and 20 hours. She has irritability and poor concentration and this is the major factor in restricting her ability to function at a psychological level in the workplace. However the physical problems, as I stated in my last report, are significant and interfere to compound her problems to the level that she is incapable of working eight hours. I believe that this will be confirmed when she sees a specialist in this field.
Although Dr Parkin had noted in his report, following his second appointment with Mrs Watkin of 24 March 2000, "SHOULD have specific therapy. PTSD admission (last page of attachment at A4), in evidence he seemed to underplay the role that any therapy would have. He said that PTSD is difficult to treat and there are no miracle cures. When the Tribunal asked him whether EMDR (eye movement desensitisation and reprocessing) might be of assistance, in view of the fact that the trauma apparently relates to one specific car accident, he said there is some review evidence that it works, but his choice would be to refer Mrs Watkin to a pain clinic, although he did not hold out much prospect of such a clinic making a big difference. The Tribunal was puzzled about the discrepancy between Dr Parkin's emphasis on the need for specific therapy, in the attachment to his report of 24 March 2000, and his evidence which gave little prospect of assistance for Mrs Watkin from therapy.
Dr Parkin did not appear to have considered the apparent contrast between Mrs Watkin's presentation to him on two occasions, on the one hand, and her successful work history prior to ceasing full-time work on the other hand. That work history in our view indicates an efficient employee who derived satisfaction from doing a job well in venepuncture. Further, Mrs Watkin was apparently sufficiently well regarded for her to be offered further employment by Dorevitch Pathology, after it had taken over Trezise Pathology.
Dr Walton in his report of 6 March 2000 concluded:
4.Confining myself to this woman's psychiatric problems alone, it being outside my area of expertise to comment specifically about any physical disabilities, in my opinion, Ms. Watkin would be able to work for 20 hours or more per week.
. . .
In my view it remains the situation that this woman is suffering from modest incapacity for work on psychiatric grounds and from 20 July 1997 to the present, I doubt that she would be prevented from working for 20 hours or more per week on psychiatric grounds, including the element of psychogenic amplification of pain.

When he gave evidence, Dr Walton said that Mrs Watkin had emphasised pain rather than psychological symptoms when he saw her. Dr Walton said that he got the impression from Mrs Watkin that her mental condition had improved and stabilized while she had been taking Efexor. He said (trans. p138):
I got the impression myself that the kind of level of symptoms she was experiencing were fairly equivalent to what had occurred prior to the difficulties surrounding the first birth and even the second pregnancy, so that she was back on a more even keel; certainly not symptom-free.
In cross-examination Dr Walton agreed with Mr De Marchi that Mrs Watkin suffered from PTSD and that "as far as I can determine", the post-natal depression "has now disappeared from the scene" (trans. p139). Dr Walton added (trans. p141):
I mean, it's a long time ago this accident happened and my impression was that things had pretty much stabilised leading up to the pregnancy and have reached pretty much the same state again now.
Dr Walton stated that if the problems with PTSD did not lead to any psychiatric referral, pre-pregnancy, it was "probably a sound conclusion" that they "can't have been very severe" (trans. p141).
Dr Walton said he could not explain why Mrs Watkin's mental state should have worsened over recent years, unless her physical condition had become worse. He said there was no reason for that to happen as there had not been, for instance, a further accident. He wrote in his report of 6 March 2000 (R1), that he doubted that Mrs Watkin would be prevented from working for 20 hours or more per week on psychiatric grounds, including the element of psychogenic amplification of pain. He added (R1):
Because she is a mother with young children, understandably enough, Ms. Watkin devotes her time to those responsibilities rather than active involvement in the community but I doubt that it could be said that there is any major alteration in community activities because of her post-traumatic stress disorder.
Dr Walton agreed in cross-examination that there was a "significant identifiable objective, if you like, incapacity for work of a partial nature specifically attributable to her psychiatric symptoms" (trans. p144).
The Tribunal questioned Dr Walton about his assumption that Mrs Watkin had PTSD prior to 1997, when it was first claimed. He replied (trans. p145):
Well, I hear exactly what you say. I think it's – if my impression is right that the situation back then was pretty much the same as it is now, I mean, I think that does have implications fairly directly in terms of her likely capacity for work and, clearly, she was able to work despite these problems in the past.
. . .
[Y]ou are substantially reliant upon the account given at the time but, I mean, if it is the case that, well, between '93 and '96 that she consulted with nobody about the pain, or the psychological problems related to the accident, I mean, that really is most unusual if it is a serious pressing problem.
Dr Walton added (trans. p145):
If it is the case that she has not sought any sort of professional assistance either for the back pain, or the widespread, or for the psychiatric problems I mean, I think I certainly would draw the conclusion about the severity of the condition being at the milder end of the spectrum.
We find that Mrs Watkin had a tendency to exaggerate her psychiatric problems in her evidence. If she were really as bad as she said, we cannot understand why she has not sought psychiatric help since mid 1998, when she said she had stopped seeing Dr Chong. We note that in her evidence she described worse symptoms than she had described to Dr Walton. He reported that Mrs Watkin had "a reasonably normal pattern of sleep" with occasional nightmares (trans. p39). She told the Tribunal, "I can't sleep well. No night is a good sleep". In re-examination she expanded that evidence (trans. p41):
I take my tablets – if I take my tablets any later than 8.30, I don't get to sleep before 1 o'clock in the morning. So I have got to take my tablets around the 8 o'clock, 8.30 mark and have at least three glasses of wine, which is I suppose a normal 200 ml glass so I can get to sleep before 11 o'clock. When I get into bed, I do my stretches and I do all the clunking and then it is trying to find a position that I can actually sleep in. If I sleep on the right side, I get pins and needles. If I sleep on my left side, my hip feels like it is being dragged through the bed. If I sleep on my back, my neck hurts and I cannot sleep on my front, because I can't turn my head. So sleep is very, very difficult. A good sleep – I don't know what a good sleep is.

Mrs Watkin told Dr Stone that her anti-depressant medication was effective. She gave no evidence of any improvement in her psychiatric symptoms. She described significant problems in motivation to us and said she frequently cried. Dr Hanson noted in October 2000 that Mrs Watkin was "well" and that was why she had not used the psychiatric referral he had given her. Dr Parkin also noticed an improvement in psychiatric symptoms.

Mrs Watkin said, and we accept, that she had some interpersonal difficulties when she worked as a nurse employed by a hospital, or as a clerical assistant in a department where the doctors sought to socialise with her. But she said she coped better doing typing from tapes or performing phlebotomy duties. There is no evidence that during the years 1988 to 1994 Mrs Watkin had any problems with motivation or with attending work regularly. She worked full-time in suitable employment. We do not find that the psychological problems, which Mrs Watkin anticipates she would have, if she attempted to return to work, would necessarily arise, or would be due to PTSD and other accepted conditions, alone. For example, Mrs Watkin said she would not be able to drive to work and might have to ring an employer daily to say she could not come in (trans. p39); but she said she does drive her son to kinder three mornings a week.
The evidence does not satisfy us that Mrs Watkin is "totally and permanently incapacitated" as required by s 24(1)(b) of the Act. First we are far from satisfied that any incapacity Mrs Watkin may now have is permanent. That term is to be interpreted, as explained by the Full Court of the Federal Court in McDonald and Director General of Social Security (1984) 6 ALD 6 at p13, as meaning that the total incapacity is more likely than not to persist in the foreseeable future. We find that there is evidence of some improvement, as noted by Dr Hanson in his records for 4 October 2000, paragraph 41 above. Mrs Watkin did not paint a picture of any improvement in her evidence but we regard Dr Hanson's notes as a more reliable indicator of the situation.
Secondly, Mrs Watkin has not sought specialist assistance to deal with her psychological problems since approximately mid 1998. When Dr Hanson gave her a referral to another psychiatrist she did not use it and claimed to him that she was "okay". If Mrs Watkin's condition were so bad as to prevent her working more than 20 hours a week, we would expect she would have sought specialist treatment. She is a young woman with family responsibilities and many years of working life ahead of her.
Mrs Watkin has, according to her evidence, for some considerable time been very depressed and taking Endep 150mg a day, or other similar medications, as well as Diazepam and a vast number of Panadeine Forte. She described her limitations in looking after her children and said she coped because they were very good, but she did not say how she had managed when they were very young and unable to amuse themselves as she described. She also said that she relies on alcohol to help her cope, although she has reduced her drinking to some extent. But the evidence did not explain why Mrs Watkin has remained in this situation rather than using the referral to a psychiatrist given her by Dr Hanson. We are not satisfied that her desire to be reclassified as a result of these proceedings might not itself be playing a part in the apparent maintenance of her symptoms at their current level of severity. Dr Stone wrote at page 2 of his report (A3):
She considered returning to pathology, "but they wanted me to sign a waiver that if I had any problems with existing injuries they wouldn't cover me. I put them on hold until I am fixed, or until I am reclassified.

On the basis of that comment which we find was made by Mrs Watkin to Dr Stone, we find that a desire to increase her rate of pension in this application, is a factor contributing to her apparent incapacity for work.

Mr De Marchi submitted that we should add together an incapacity from physical injuries and an incapacity from PTSD, and then find that Mrs Watkin's total incapacity from defence-caused injury or disease was, of such a nature as, of itself alone to render her incapable of undertaking remunerative work for more than eight hours a week.
We do not find that the evidence provided us with separate estimates of incapacity from the two aspects of Mrs Watkin's condition. When she has seen specialists as to her physical injuries, they have attributed her problems mainly to her psychiatric condition. When she has seen psychiatrists and her local doctor they attribute her major problems to pain. The evidence does not explain why the defence-caused injury and disease has deteriorated since Mrs Watkin chose to give up full-time work and suffered post-natal depression after the birth of her first child.
We are not satisfied that Mrs Watkin could not return to work more than 20 hours a week as a phlebotomist with Dorevitch Pathology or some other Pathology Clinic. She may yet do so. But if she cannot, we are not satisfied that any incapacity she suffers is from defence-caused injury or disease alone. The nature of that injury and disease was not such as to prevent Mrs Watkin working full-time from 1988 to the end of 1994. We do not find that its nature has changed since then. We find that Mrs Watkin's lifestyle changes, and the effects of her post-natal depression, are contributing to her present situation. If she is now more incapacitated for work than she was between the years 1988 to 1994, we find that it is not due to incapacity from defence-caused injury or disease, alone.
Mr De Marchi asked us to also consider s 23(1)(b) of the Act. For the same reasons we have already given, we are not satisfied that Mrs Watkin's incapacity from defence-caused injury or disease is, of itself alone, of such a nature as to render her incapable of working otherwise than on a part-time basis or intermittently. She chose to work on a part-time basis in 1995 for personal reasons, but the evidence is that the nature of her defence-caused injury and disease was not such as to prevent her working full-time from 1988 to November 1994. There is nothing that satisfies us that the nature of that injury and disease has changed now so as, of itself alone, to prevent Mrs Watkin working otherwise than on a part-time basis or intermittently.
Thus we find that there is a complicated combination of factors operating to keep Mrs Watkin out of the workforce at present. We do not find that her incapacity from defence-caused injury or defence-caused disease, or both, is of such a nature as of itself alone to render Mrs Watkin incapable of undertaking remunerative work for more than 8 hours, or more than 20 hours a week or otherwise than on a part-time or intermittent basis.
s 24(1)(c) or s 23(1)(c)
Similarly we do not find, as required by s 24(1)(c) or s 23(1)(c), that by reason of incapacity from defence-caused injuries or disease, or both, alone, Mrs Watkin is prevented from continuing to undertake remunerative employment that she was undertaking. She gave up remunerative employment, in a field in which she was qualified and had successfully worked for four years after her accident, for personal and family reasons, and although they are "absolutely screaming" for people who can do venepuncture she has not returned to that field. Further she has refused or "put on hold" a job in that field which has been offered her, for reasons which we find were partly related to improving her prospects in this hearing.
Mrs Watkin said that the reason why she did not return to full-time work in venepuncture after her successful knee surgery in 1995, but instead commenced her own small business partnership in which she worked only part-time, was to fit in with her intention to start a family. We find she chose to make a lifestyle change at that time. We find that her change in lifestyle after starting her own business, and her post-natal depression and sleep deprivation after the birth of her first child, were factors contributing to Mrs Watkin's decision to dissolve the nail enhancement partnership. She was not prevented from continuing to undertake remunerative work by incapacity from defence-related injury or disease alone. Nor is any loss of salary and wages due to incapacity from defence-related injury or disease alone. The nail enhancement business was barely profitable. Mrs Watkin gave up her share of the small business shortly after the birth of her first child, and within a month of being diagnosed by a psychiatrist as suffering post-natal depression. We do not accept her evidence that it was incapacity from defence-caused injury or disease alone, or even substantially, which prevented Mrs Watkin continuing to undertake remunerative work.
Dr Walton, wrote in his report of 6 March 2000 (R1):
Given the circumstances of the accident, it is not surprising that Ms. Watkin describes that as being a frightening experience for her. However, it was not until early 1997 in the immediate aftermath of the birth of her son that this woman attracted psychiatric attention. She was actually admitted to the Queen Elizabeth Mother and Baby Unit for a fortnight and she came under the care of Dr. A. Cochrane, psychiatrist, and antidepressant medication was introduced.

Dr Walton concluded:

She does not emphasise it herself but it would seem highly likely to me that her post-natal depression, which developed in early 1997, may have some relevance to the final cessation of work, however, that particular aggravation could not be considered to be service-related and, in my opinion, has no current relevance.

We find that both family responsibilities and post-natal depression played a part in preventing Mrs Watkin continuing to undertake remunerative employment from 27 February 1997 onwards.
s 24(2)(b)
Mr De Marchi relied on s 24(2)(b). We find that s 24(2)(b) is not relevant, as we do not find that Mrs Watkin has been genuinely seeking to engage in remunerative work. Nor do we find that, but for incapacity from defence-related injury and disease, Mrs Watkin would be continuing to seek to engage in remunerative work, or that incapacity from defence-related injury and disease is the substantial cause of her inability to obtain remunerative work.
conclusion
We find that Mrs Watkin is not qualified for payment of pension at either the special or the intermediate rate.
The parties have agreed that Mrs Watkin's general rate of pension be increased to 100%. The decision under review will be varied to provide that Mrs Watkin is entitled to pension at 100% of the General Rate from 20 July 1997.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member Mr A Argent, Member and Ms M J Carstairs, Member
Signed:         Grace Carney
  Personal Assistant
Date/s of Hearing  20 July and 11 October 2001
Date of Decision  10 December 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr D De Marchi
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Ms J McCulloch