Williams and Repatriation Commission

[2002] AATA 542

DECISION AND REASONS FOR DECISION [2002] AATA 542

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/1071

VETERANS' APPEALS DIVISION          )          
           Re      RONALD MAXWELL WILLIAMS           
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member)

Date4 July 2002 

PlaceBrisbane

Decision      The Tribunal decides: (a) to affirm the decision to accept post traumatic stress disorder, as a war-caused disability; (b) to set aside the decision to assess disability pension at 100% of the General Rate; (c) remits the matter to the respondent with a direction that the terms of section 24 of the Veterans' Entitlements Act 1986 are satisfied with effect from 17 August 1998.             

(Sgd) K L Beddoe
  Senior Member
Decision No: 542/2002
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – whether PTSD war-caused – whether disability pension should have been assessed at the special rate
Veterans' Entitlements Act 1986 s 24

REASONS FOR DECISION

4 July 2002    Mr K L Beddoe (Senior Member)            

1. By a determination notified on 3 December 1998 the respondent determined:

   (a)The conditions post traumatic stress disorder and bilateral tinnitus were accepted as war-caused disabilities with effect from 17 August 1998; and

   (b)Disability pension was increased to 100% of the General Rate with effect from 17 August 1998.

2. The applicant sought review of this decision by the Veterans' Review Board on the basis that disability pension should have been assessed at the special rate.  The Veterans' Review Board affirmed the respondent's decision.  The applicant then sought review in this Tribunal.

3. At the hearing the applicant was represented by Mr Hall and the respondent by Mr Kelly. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents tendered were marked as exhibits.  Oral evidence was given by the applicant, Dr Gelb and Dr Mulholland, both consultant psychiatrists.

4. The applicant was born 19 August 1934 and was 64 years of age when he made the claim on 17 November 1998.  He served in the Australian Army from 6 August 1952 to 5 August 1958 and from 12 October 1964 to 11 July 1970.  He saw service in South Korea from 20 March 1954 to 16 May 1955 and South Vietnam from 25 March 1970 until August 1970.

5. The parties agreed as a fact that the applicant had eligible defence service from 7 December 1972 to 5 January 1990 but that agreement is contrary to the evidence of the applicant and I find that the applicant's service is as stated in paragraph 4.

6. While serving in South Korea the applicant witnessed dismembered bodies and torn clothing.  He also witnessed a Korean woman run over by a Canadian truck with the result that the body became lodged between the dual wheels of the truck.  The applicant said in oral evidence that he was travelling on another truck as a guide.  That truck was following the truck which ran over the woman.  In the result the applicant had to help extract the mutilated body from the wheels of the truck by using bayonets.  He said he vomited on the side of the road during the removal of the body.

7. In relation to his service in South Vietnam the applicant gave evidence about an incident in which he came face to face with an enemy soldier in bush next to a beach but neither reacted physically to the presence of the other.  The applicant eventually walked away knowing that an enemy gun was pointing at him.  He did not report the incident.  He says he relives this experience from time to time with flashbacks brought on by patches of scrub on a beach, national parks and helicopters and for no reason at all.

8. Exhibit E sets out the applicant's work history.  After leaving the Army in 1970 he was employed as a mobile crane driver and as an earth moving machine operator.  From 1972 to 1993 he was self-employed as an earthmoving sub-contractor.  I understand that to be on the basis that he operated his own equipment for hire.

9. Exhibit F is a summary of the applicant's business tax returns which shows the following information for the years of income ended 30 June 1990 to and including 30 June 1993.  It seems the applicant was in partnership with his then wife.

1990 $           1991 $           1992 $           1993 $           
Total Partnership Income              80,720  61,688  83,839  51,126           
Expenses etc  39,823  27,464  32,894  28,491           
Net Income               40,897           34,042  30,945  26,490           
Interest  6,382             9,166             7,700             3,855 
Tax Paid                   16,143  12,337  12,769  10,225           

1. In March 1993 the applicant was involved in a motor vehicle accident on Kingsford Smith Drive.  Apparently the applicant was driving his light tonne truck which collided with a motor car from behind ie the applicant's truck hit the back of the car.  He decided as a consequence of the accident that he should sell his heavy equipment.  He says he did a few easy jobs after the accident but was too nervous and was afraid he would kill someone.

2. He has not worked since March 1993 and has not sought work. 

3. The respondent accepted that the applicant was permanently unemployable at 17 March 1994 when the applicant was granted a service pension.  Document T4 includes a copy of the applicant's claim for service pension dated 12 April 1994. That claim includes the following statements:

   "9Please give details of any other circumstances that prevent you from working, that you think should be taken into account.

   Lower back injury which prevents me from lifting (?) sitting for any length of time.

   Bad knees.

   Inability to drive heavy vehicles and machinery due to accident involving injury in April 1993"

The claim for service pension was based on the accepted disability chronic right shoulder rotator cuff injury.

1. I was impressed by the applicant's evidence in that it was frank but I doubt it was full.  There was a clear reluctance to discuss his history in detail.  That reluctance may some-times be caused by a lack of honesty but in this case I am satisfied it was a psychological reluctance to open up in a public place.  I have no reason to doubt that the applicant was a credible witness.
   The Medical Evidence

2. Document T7 is a copy of a report by Dr Gelb, consultant psychiatrist, dated 26 November 1998 and addressed to the applicant's representative.  After relating a history not inconsistent with the evidence before the Tribunal and the applicant's symptoms Dr Gelb concluded that the applicant was suffering post traumatic stress disorder (PTSD) within the terms of DSM IV and the relevant statement of principles. 

3. Dr Gelb made a second report dated 24 March 1999 (Exhibit A).  In it he opines that prior to the applicant being diagnosed with PTSD he was unaware that he suffered a psychiatric disorder and blamed his problems with work and personal relationships on physical factors and other people.  Dr Gelb expressed the view that the applicant had continued to work over the years despite his physical disabilities but it was his mental condition that finally overwhelmed him.  He went further and said that he didn't see that the applicant's physical condition made any contribution to his unemployability and it was the undiagnosed and untreated PTSD alone that caused the applicant's continued unemployability.

4. Exhibit B is a copy of a further report by Dr Gelb dated 10 October 1999.  It is really argumentative and depends upon an assertion that the applicant ceased using earth moving equipment and sold his business within two weeks of the motor vehicle accident.  The evidence before the Tribunal persuades me that the applicant undertook some "easy" work after the accident but decided not to continue and sold up after about two months from the date of the accident.

5. Exhibits C and D are copies of two further reports by Dr Gelb which respond to two reports by Dr Mulholland.  Essentially Dr Gelb maintains his diagnosis of PTSD and explains that the applicant "clearly meets the diagnostic criteria" for PTSD.  In Exhibit B he links the PTSD with ceasing business because of the motor vehicle accident.  Dr Gelb is also of the view that the applicant's physical ailments did not stop him working before 1993 and were not the reason for stopping work in 1993.

6. In his oral evidence Dr Gelb said the applicant was a reluctant historian.  He confirmed his diagnosis of PTSD with ongoing symptoms.  He also said that the applicant's impulsive action to sell his business after the motor vehicle accident in 1993 evidenced PTSD at work at the time.

7. Dr Gelb said that in his experience it was not unusual for Korean veterans who had been traumatised to re-enlist in the Army.  They develop a "family" feeling in relation to the Army.

8. He thought the applicant had little choice other than to cease work in 1993.  The fact of increased symptoms since leaving work was consistent – some exacerbation of symptoms is to be expected when work ceased.  He confirmed his view that the applicant would not be able to fulfil any employees expectations.

9. Exhibit 1 is a copy of a report by Dr Mulholland, psychiatrist, dated 23 May 2000 and addressed to the Department of Veterans' Affairs.  Dr Mulholland had the benefit of a file of documents (T documents) including Dr Gelb's report of 26 November 1998 (T4).  It is relevant to note that the respondent made its determination to accept PTSD as war-caused on 3 December 1998.  Dr Mulholland listed the accepted disabilities as follows:

   (a)PTSD

   (b)Bilateral senorineural hearing loss

   (c)Bilateral tinnitus

   (d)Solar skin damage with malignant change

   (e)Chronic rotator cuff syndrome

1. Dr Mulholland summarised the history taken which is generally consistent with the evidence before the Tribunal but failed to refer to the incidents in South Korea.  He also summarised his clinical examination results.  He concluded that the applicant does not have PTSD but does have a "phobic type condition in respect of accidents, traffic, heavy trucks and operating machinery" (later described as two conditions).  He also said that the applicant may not be able to drive trucks or heavy machinery but that is nothing to do with any war-caused matter.  Given Dr Mulholland's failure to refer to the incidents in South Korea (which are referred to in Dr Gelb's report of 26 November 1998 (T4) it is reasonable to assume, at the time of his report, that Dr Mulholland was relating back to the incident in South Vietnam.

2. In a further report dated 17 October 2000 (Exhibit 2) Dr Mulholland notes that he had been asked to reconsider the question of diagnosis of PTSD.  The respondent's letter of 21 September 2000 requesting the reconsideration is before the Tribunal.  Dr Mulholland raises the possibility that the criteria for diagnosis of PTSD are met.  He confuses the traumatic events described by the applicant.  Having confused those events, Dr Mulholland then accused the applicant of elaboration of his history.

3. Dr Mulholland was asked, in effect, to assume that the traumatic events related by the applicant had occurred because the respondent was unlikely to be able to prove, beyond reasonable doubt, that they had not taken place.  He was then asked "does Mr Williams suffer from PTSD within the meaning of the Statement of Principles ie No 15 of 1994 as amended by No 275 of 1975 (sic)(225 of 1995)."

4. In his report Dr Mulholland identified the correct statements of principle.  He said, inter alia, that the applicant's experience in Korea "possibly meets the criteria as detailed for 'experiencing a stressor'" but as I have already noted, Dr Mulholland appears to confuse the history.

5. In his oral evidence Dr Mulholland said that the applicant did not communicate features of PTSD to him.  He also said that he didn't think there was any connection between the accident involving the woman in South Korea and the motor vehicle accident in 1993.  Dr Mulholland said that his report (Exhibit 2) was in fact referring to the incident in South Vietnam, not Korea.  In the result Dr Mulholland's oral evidence was equivocal as to whether the reported symptoms were symptoms of PTSD.
   Consideration

6. I am satisfied that there is no basis in fact for finding that the decision to accept PTSD should be set aside.  The respondent's representative conceded as much at the close of the hearing.

7. I am also satisfied that it is more likely than not that the 1993 motor vehicle accident exacerbated a pre-existing condition correctly diagnosed as PTSD.  Dr Gelb says so and Dr Mulholland became less certain as to his opposition to the diagnosis in the course of his oral evidence.  In the circumstances I should accept Dr Gelb's diagnosis of 1998 and his report of 24 March 1999.

8. I am satisfied on the basis of Exhibit F and the applicant's oral evidence that he has suffered a loss of income since selling his business after the motor vehicle accident.  He continued to suffer that loss of income at the time of claim.

9. The issue here is whether it was the PTSD condition is of such a nature as, of itself alone, to render the applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week.  Dr Gelb would answer the question in the affirmative but Dr Mulholland does not.

10. There is also the issue of the claim for service pension.  The applicant was undiagnosed as to any psychiatric condition when he made a claim for service pension on the basis of being unable to work because of the stated physical conditions which included non-accepted disabilities.  The applicant's evidence satisfies me that he was exhibiting signs of PTSD at least from the time of the 1993 motor vehicle accident.  It is more likely than not that the accident exacerbated those symptoms because of the traumatic event involving the motor vehicle accident in South Korea and I so find.

11. In the circumstances I am not satisfied that I should give any weight to the conflicting evidence in the claim for service pension.  I am satisfied, as per Dr Gelb, that the applicant is severely incapacitated by his symptoms and is and has been unemployable since he sold his business in 1993.

12. I find that it is the condition of PTSD which alone has rendered the applicant incapable of undertaking remunerative work for periods aggregating more than eight hours per week and it was that condition alone which prevented the applicant continuing to carry on the business that he was undertaking until 1993 with a resulting loss of earnings on his own account that he would not be suffering if free of PTSD.

13. I will affirm the decision to accept PTSD as an accepted disability, set aside the decision to assess pension at 100% of the General Rate and remit the matter to the respondent with a direction that section 24 of the Veterans' Entitlements Act 1986 was satisfied with effect from 17 August 1998 being the date of effect for acceptance of PTSD.

    I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

    Signed:         .....................................................................................
      Associate

    Date/s of Hearing  19 July 2001
    Date of Decision  4 July 2002
    For the Applicant  Mr Fraser
    For the Respondent                 Mr Kelly