Winston Parry and Military Rehabilitation and Compensation Commission

[2014] AATA 493

[2014] AATA 493 

Division	Veterans' Appeals Division
File Number(s)	2013/5876
Re	Winston Parry
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe  Dr G J Maynard, Brigadier (Rtd), Member
Date	18 July 2014
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe
 Dr G J Maynard, Brigadier (Rtd), Member

CATCHWORDS

COMPENSATION – Application for compensation in respect of cognitive impairment – Applicant already in receipt of pension for PTSD and chronic depression – Medical expert evidence suggests cognitive impairment not a separate medical condition – Cognitive impairment a consequence of accepted psychiatric conditions already compensated for under separate Act – Reviewable decision affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5(10)

REASONS FOR DECISION

Senior Member Bernard J McCabe and Member Maynard

18 July 2014

1. Mr Winston Parry receives a disability pension paid at the special rate under the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”). His accepted conditions include post-traumatic stress disorder (PTSD) and dysthymia, or chronic depression. He has been experiencing cognitive impairment. He applied to the Military Rehabilitation and Compensation Commission (the Commission) for compensation in respect of the cognitive impairment condition under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). The Commission says Mr Parry is not eligible for compensation under the SRC Act because his cognitive impairment is a consequence of the psychiatric conditions that are compensated under the VE Act.

2. Mr Parry points out the diagnostic criteria applicable to PTSD and dysthymia do not mention cognitive impairment. In those circumstances, he says he is not being paid a pension in respect of cognitive impairment under the VE Act, so he should be able to make a claim under the SRC Act.

3. We are satisfied s 5(10) of the SRC Act excludes Mr Parry from making claims under that Act in respect of a cognitive impairment condition. We explain our reasons below.

   THE HISTORY OF MR PARRY’S CLAIM

4. Mr Parry joined the Australian Regular Army in March 1962. He rendered operational service in Malaya, Borneo and Vietnam. He was discharged in 1986 but continued in the Army Emergency Reserve and then the General Reserve until 1997, when he was discharged as a consequence of his medical conditions after a successful military career. Mr Parry was subsequently granted the pension at the special rate under the VE Act.
   His accepted conditions include PTSD and dysthymia. His treating psychiatrist,
   Professor Lawford, says Mr Parry almost certainly began to experience psychiatric symptoms of PTSD soon after his return from Borneo or Vietnam in the late 1960s, although he was not diagnosed until 1996 or 1997.

5. In 2010, Mr Parry reported experiencing episodes of cognitive impairment, including difficulties with short-term memory and concentration. He referred in his oral evidence to several examples where he became confused or disorientated. He was subsequently assessed by a variety of specialists who concluded he was experiencing at least a mild cognitive impairment. That much is agreed as between the parties.

6. Mr Parry lodged a claim with the Commission on 20 September 2012 in respect of a condition described as “injury or disease to the cerebro-spinal system”. The Commission accepted liability for “atrophic changes in the brain produced by chronic PTSD and depression, worsened by episodic alcohol abuse” on 24 October 2012. This was a controversial conclusion as there was limited evidence of alcohol abuse and no imaging studies to confirm any changes in Mr Parry’s brain. The Commission subsequently revoked the determination on 5 June 2013. The reviewable decision affirming that conclusion is dated 1 November 2013.

   THE MEDICAL EVIDENCE

7. We heard from two expert witnesses at the hearing. Both were impressive,
   highly-credentialed individuals. Dr David Rosen was called by the Commission. He is a consultant neurologist. He had provided a report dated 25 March 2014 in which he concluded Mr Parry’s cognitive impairment was likely to be a consequence of PTSD and dysthymia. He opined that it was unnecessary to offer a separate diagnosis of the cognitive impairment because it was adequately explained by Mr Parry’s accepted psychiatric conditions.

8. On the day of the hearing, Dr Rosen was provided with a report in relation to a recent MRI study of Mr Parry’s brain. Dr Rosen was unable to access the MRI itself but he read the report and contacted the radiologist to discuss the findings. We are satisfied he was in a good position to interpret the findings set out in the report, which is exhibit 4. In his evidence, Dr Rosen noted there was some reduction in brain volume evident on the MRI but suggested it was not a dramatic diminution relative to what one might expect in a man of Mr Parry’s age. Dr Rosen said the MRI did not change his view that the best explanation – indeed, the only known explanation – for Mr Parry’s cognitive impairment was the PTSD and dysthymic disorders that were accepted for the purposes of the
   VE Act. He said cognitive impairment is a common feature of PTSD and dysthymia.

9. Professor Bruce Lawford is Mr Parry’s treating psychiatrist. Professor Lawford provided several reports and was called to give evidence at the hearing. He took a slightly different view of the role of structural changes in the brain in light of the MRI. He said the loss in brain volume and atrophy did explain the cognitive impairment – but added those structural changes were themselves likely to be a consequence of PTSD and dysthymia.

10. Both experts agreed Mr Parry’s cognitive impairment was secondary to his accepted psychiatric conditions, although they differed slightly on the precise nature of the link. We do not think anything turns on the differences in the evidence.

    THE LEGISLATION

11. The outcome of this dispute turns on the interpretation of s 5(10) of the SRC Act.

    
    

    The section provides:

    (10) Subject to subsections (10A), (10B), (10C) and (10D), this Act does not apply in relation to service of a member of the Defence Force in respect of which provision for the payment of pension is made by:

    (a) the Veterans' Entitlements Act 1986 ; ….

12. Sub-sections (10A), (10C) and (10D) are irrelevant for present purposes.
    Sub-section (10B) creates an exception to the exclusion in s 5(10) where the service in question is covered by Part IV of the VE Act, which deals with non-operational service. But that is not the case here: Mr Parry’s psychiatric conditions are accepted as being attributable to his operational service, which is dealt with in Part II of the VE Act.

13. The medical experts agree Mr Parry’s cognitive impairment is secondary to his accepted psychiatric conditions, albeit they had different views as to the precise nature of the relationship. It must be accepted that cognitive impairment is not mentioned in the diagnostic criteria set out in DSM-IVTR in connection with either of the accepted conditions, but that does not make any difference for present purposes. Section 5(10) of the SRC Act requires a claimant experiencing health conditions that arise out of war service to look to the VE Act, not the SRC Act. The cognitive impairment is clearly connected one way or another with Mr Parry’s war-related conditions, and those conditions and the consequences which flow from them are compensable under the
    VE Act. The outcome might be different if it were possible to identify another work-related factor that contributed to Mr Parry’s cognitive impairment, but the medical experts have excluded other causes.

    CONCLUSION

14. The reviewable decision is affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Member Maynard.

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Associate

Dated   18 July 2014

Date of hearing	14 July 2014
Applicant	In person
Counsel for the Respondent	Mr A Dillon
Solicitors for the Respondent	Australian Government Solicitor