Campain and Repatriation Commission [1999] AATA 829 (5 November 1999)

Last Updated: 10 November 1999

DECISION AND REASONS FOR DECISION [1999] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q98/609

General ADMINISTRATIVE DIVISION )

Re TREVOR HOWARD CAMPAIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P Gerber Captain ET Keane, Member Dr KP Kennedy, Member

Date 5 November 1999

Place Brisbane

Decision The Tribunal sets aside the decision under review, namely that of the Repatriation Commission dated 2 September 1997 and in substitution therefor determines that the applicant is entitled to receive pension at the Special Rate with effect from 18 August 1997.

(Sgd) P GERBER

PRESIDING MEMBER

CATCHWORDS - Veteran's affairs - Disability pension - Special rate - Nature of requirement that the veteran genuinely seek to engage in remunerative work - (CTH) Veterans' entilements Act 1986 ss 24(1)(b), 24(2)(b).

REASONS FOR DECISION

5 November 1999 Deputy President Gerber Captain ET Keane Dr KP Kennedy

1. The applicant in this case seeks a review to this Tribunal from a decision of the Repatriation Commission dated 2 September 1997, as affirmed by the Veterans' Review Board on 29 April 1998 which denied the applicant an increase in pension from 100% of the General Rate.

2. The applicant was represented by Mr Glen Mylne, an advocate; the respondent was represented by Mr J Stoner, a Departmental Advocate.

3. The issue is whether the applicant is entitled to a disability pension at the special rate pursuant to s 24 of the Veterans' Entitlements Act 1986 ("the Act").

4. The nub of the applicant's claim is that he is unable to perform any work, let alone eight hours per week, allegedly due to a psychiatric condition known compendiously as post traumatic stress disorder ("PTSD").

5. The veteran enlisted in the armed forces in 1968. He served in South Vietnam in 1970-71, after which he was discharged from the Army. It seems he did not cope well with the adjustment to civilian life and re-joined the Army after a few weeks. His career in the armed forces can only be described as "successful", the veteran being promoted to the rank of Sergeant Level 6, as well as undertaking a number of courses. He left the Army in 1980, allegedly due to alcohol abuse, said to have been induced by his RSM who stayed in the Sergeant's Mess until all hours (protocol demanded that no one could leave the mess until the RSM chose to leave). He remains a heavy drinker to this day, albeit he has now enrolled in a detox unit on medical advice.

6. As a result of his service with the armed forces, the veteran has a number of accepted disabilities, namely glandular fever, anxiety state, obstructive airways disease and unilateral sensori-neural deafness.

7. After leaving the Army in 1980, the applicant joined the prison service of the Queensland Corrective Services Commission in Townsville as a Corrections Service Officer. Again, he was able to cope well in that service, rising to the rank of Senior Prison Officer. He saw the service in the prison as a new career and did not contemplate leaving that service until retirement. Alas, a prison riot on 6 April 1989 put an end to this career, the veteran suffering a head injury as a result of an assault by a rioting prisoner. The applicant was placed on workers' compensation and received weekly payments of compensation until 1 March 1991, when he was notified that: "The Neurology Board (of the Workers' Compensation Board of Queensland) determined that the 'Injury' (suffered in the prison riot on 6 April 1989) resulted in permanent partial disability of the nature and extent of 5 per cent loss of bodily function. The General Medical Board determined that the 'Injury' resulted in permanent partial disability of the nature and extent of 20 per cent loss of bodily function."

8. Following the General Medical Board's determination, the Workers' Compensation Board decided to settle the applicant's claim by a lump sum settlement in respect of the injury of a proportionate amount of the total liability prescribed by the (then) Workers Compensation Act 1916-1988, paid him an amount of $13,692.50 and ceased weekly payments as of the aforementioned date. The applicant claimed in evidence that this settlement was heavily discounted by the Board, which he alleges formed the view that much of his disability was attributable to his war service in Vietnam.

9. The applicant, having left the prison service as a result of his head injury, claims he looked for work with various mining companies (he has a truck driver's licence), but to no avail. He had many interviews but none resulted in job offers. This may, in part, be due, he believes, to his irritability at interviews ("sometimes I just failed to tolerate people. I didn't have that problem when in the army or prison service"). In the end he was reduced to mowing lawns for people for about 15 hours per week. He claimed he could have done more mowing if more work of this type had been available. In October he commenced work as a cleaner with Berkeley Challenge Pty Ltd (later P&O Berkeley Challenge Pty Ltd), working for about 20 hours per week. Physically he could have coped with more work but claims he was only given 20 hours' work because he had problems with customers and objected to people telling him how to do his work. He left that employment on 6 November 1992 after having had some altercations with the catering manager, chasing him around the canteen and threatening to kill him.

10. This episode persuaded the veteran to seek medical advice from Dr IS Fraser, his G.P., on 13 November 1997, who provided him with a TO WHOM IT MAY CONCERN certificate in the following terms:

"I have been attending this patient from 1985 to the current time. I consider he suffers from post traumatic stress disorder due to the services with the Armed Forces in Vietnam in 1970.

He has continued to suffer this illness to this day and it is progressively deteriorating."

11. On 17 January 1998, Dr Fraser wrote the Veterans' Review Board, claiming that:

"This patient is incapable of working eight hours per week in any remunerative employment due to his post traumatic stress disorder which is an acknowledged disability with the Department of Veterans' Affairs."

12. The applicant has not worked to this day nor sought any work.

13. The "T" Documents indicate that Dr Fraser first saw the applicant on behalf of the respondent for purposes of a General Medical Examination. After noting the accepted disabilities (set out above), Dr Fraser listed the following other medical conditions: (1) solar keratosis, (2) indigestion, (3) polyarthritis, fungal infection of nails, (4) depression, (5) headaches.

14. In response to further requisitions from the Department, Dr Fraser stated, inter alia, on 12 February 1996 that:

"In 1989, he was assaulted by a prisoner whilst employed as a prison warder. In this assault he suffered an head injury. He complains of headaches, loss of memory, loss of concentration, blurred vision and photophobia. He says his symptoms are made worse by loud noises. As a result he is often cranky, irritable and has a short temper. These symptoms affect his ability to perform in work involving mental concentration, as a result he is incapable of performing clerical or sales employment."

15. To complete the medical picture, the applicant was seen in Townsville by a Ms Drew, a clinical psychologist, on 20 February 1990, who saw - and treated - the applicant on behalf of the Townsville Correctional Centre. She reported:

"In my opinion Trevor Campain has a typical Post Traumatic Stress Disorder, a psychiatric condition, originally caused by his exposure to stress in Vietnam, but reactivated recently by the traumatic assault at the prison in April, 1989. This condition occurs as a result of a serious threat to one's life or physical integrity causing a severe reaction which can become chronic. It is as if the traumatic event is persistently re-experienced through memories, nightmares and flashback experiences that occur with events that resemble some aspect of the traumatic event. His persistent symptoms of increased arousal characterised by sleep disorder, irritability, concentration problems and general physiological reactivity has continued since the trauma at the prison. In spite of treatment this has become chronic and in my opinion will only settle down if he adopts a totally different lifestyle. His symptoms may reduce if he has little contact with people, and will certainly need to avoid returning to work at the prison. In my opinion he is unfit to return to work."

16. Ms Drew was not called as a witness and no notice was served that she was required for cross-examination.

17. Dr Michael Likely, a Townsville psychiatrist, saw the veteran on referral from Dr Fraser and reported on 26 November 1997 that in his opinion :

"He has a particularly severe case of post traumatic disorder which continues to deteriorate. It is complicated by major depressive disorder and by alcohol abuse. I feel that the symptoms of Mr Campain's post traumatic stress disorder is purely related to his Vietnam service and appear to be uncomplicated by the assault he suffered when working for the Department of Corrective Services."

18. On 26 May 1998, Dr Fraser was requested by the Department to assess the applicant's PTSD and depressive disorder. Question 1 asks: "Describe the level of distress that psychiatric condition causes Mr Campain (such as anxiety, depression, flashbacks, intrusive thoughts, reduced concentration, nightmares or hallucinations)." Dr Fraser responds: "severe - all of the above". Question 2 asks: "Outline the effect of psychiatric condition on his ability to cope with everyday situations: (such as preoccupation, manic behaviour, inappropriate actions, restless pacing, nervous sweating, tremor, bursts of anger, pressured speech, perserveration, inability to follow conversation, excessive drinking or compulsive gambling)." Dr Fraser responds: "Severe - all of the above except gambling". When asked to comment on how the condition affects the applicant's capacity to work, Dr Fraser responds; "Totally incapable."

19. On 27 September 1999, Dr Likely reports that he was of opinion that the veteran, "because of his post traumatic stress disorder ... is unable to work more than eight hours per week and because of his age, education and disabilities, is unable to be retrained in any other employment".

20. The respondent called no medical evidence to rebut the applicant's medical evidence and relied solely on the off-chance that, like Mr Micawber, something might turn up in cross-examination. Alas, nothing did, save that the applicant gave a demonstration of his "short fuse" when he informed Mr Stoner "that you don't know how much willpower it takes to stop me from coming over and beating your fucking head in".

21. Dr Likely was called on behalf of the applicant and re-affirmed his view that the applicant's PTSD alone would render him wholly unable to work. As to the applicant's PTSD, the witness claimed that he was reliving his war-time experiences and that his symptoms showed an emotional numbing, which caused him to be unable to relate to people. In addition the applicant suffered from an increased arousal, had difficulty in sleeping, was irritable and lacked ability to concentrate. The witness went on to add that the applicant had a low threshold for tolerance of people and lives on his own in an isolated area. Indeed, he insists on seeing Dr Likely at 8 a.m. to avoid contact with the doctor's secretary and staff.

22. In cross-examination, Dr Likely persisted in his view that the applicant has suffered from PTSD "since after Vietnam" and has gradually deteriorated since then. He went on to add that this is typical of the condition if left untreated, especially if the patient is exposed to stresses at work.

23. When asked what effect the attack in prison had on the applicant, the doctor opined that this was a factor which would have exacerbated his problems. When it was put to the witness that the applicant appeared to have coped well, both in the Army and in the prison service, the doctor conceded that whilst the applicant had PTSD before the prison incident, the combination of his pre-existing condition and the later incident combined to prevent him now from working. He went on to add: "I know the effects of Vietnam had a profound effect on his mental health and continues to do so - that is what I'm concerned with, not the assault."

24. Dr Likely remained unshaken in cross-examination. When it was put to him that the applicant's evidence was to the effect that he experienced no problems relating to people throughout the ten years' service in the prison system until the assault on him, the doctor conceded that whilst the assault was a significant event, nevertheless the history he had obtained from the applicant was that he suffered from previous symptoms indicative of PTSD.

25. At the conclusion of the evidence, we informed the two Advocates that, having considered the evidence, we did not agree with Drs Fraser and Likely to the extent that each of them attributes the applicant's condition solely to this war service. Indeed, Dr Likely goes so far as to state in his report that the applicant's symptoms of PTSD "are purely related to his Vietnam service and appear to be uncomplicated by the assault suffered when working for the Department of Corrective Services", a statement from which he partially resiled when it was pointed out to him by a Member of the Tribunal that this view was difficult to reconcile with the applicant's work history. We also pointed out to the parties that in our view the assault the applicant suffered during the prison riot played "a significant part in the totality of this man's disabilities".

26. We now find as a fact that the applicant suffered PTSD as a result of his service in Vietnam, albeit the condition was not sufficiently disabling to prevent him from working for a number of years productively both in the Army and in the prison service. However, we are satisfied that the "incident" at the prison exacerbated the applicant's condition to the point where for some considerable time he has been unable to carry out any type of employment.

27. It follows that we accept Ms Drew's (unchallenged) report to the effect that the applicant suffers from a typical post traumatic stress disorder, "...originally caused by his exposure to stress in Vietnam, but reactivated recently by his traumatic assault at the prison in April 1989".

28. Having carefully observed the applicant in the witness box and having regard to the opinion we formed of his condition based on the totality of the medical reports, we are satisfied that the applicant in totally unfit for any type of work. It is true that, once armed with a medical certificate that he was "incapable of working eight hours per week in any remunerative employment due to his post traumatic stress disorder", the applicant sat on his hands and did nothing. The question: is it a statutory requirement that he must go through the hollow motion of actively seeking work which he is clearly unfit to perform? We will return to this when dealing with the submissions.

29. In the result, what occurred during the prison riot is not a novus actus interveniens, breaking the chain of causation, but constitutes an aggravation of a pre-existing condition, or, in terms of the Act, we find that the sole cause of the applicant's inability to engage in remunerative work is the psychiatric condition of PTSD which had its origin in the applicant's war service and was aggravated by the head injury he suffered in 1989. He thus satisfies what is known as the "alone" test in sec 24(b), ie that "the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused ...disease...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." We reach this finding notwithstanding that the head injury was not war-caused and is a factor having employment consequences which play a part in the applicant's inability to work. However, this is not sufficient to displace his case for pension at the Special Rate. In Cavell v Repatriation Commission [1988] 9 AAR 534, Burchett J had occasion to deal with sec 24, and in particular with the "alone" test". The case was an appeal from this Tribunal. In passing, His Honour noted:

"But the phrase used by the tribunal, to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the tribunal from its true task - to make 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. It is a decision that should not 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."

30. The VRB found that the applicant left the Queensland Correctional Services due to anxiety brought on by the attack on in April 1989 for which he received workers' compensation. "In these circumstances, the Board is unable to be reasonably satisfied that the veteran ceased his employment because of his war-caused disabilities. Section 24(1)(b) is therefore not satisfied". In fairness to the Board, the case below was fought solely on anxiety state and the decision must be understood against that background.

31. Before us, Mr Stoner, in an able address, conceded that on the evidence, the applicant had satisfied the test in sec 24(1)(b), but stated that it is not sufficient to be able to meet the "alone" test in that section, but in addition, an applicant must satisfy sec 24(2)(b), which provides:

(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."

32. What Mr Stoner's submission amounts to is that before an applicant can succeed, he or she must be able to demonstrate that they have "been genuinely seeking to engage in remunerative work...".

33. We agree with Mr Stoner that sec 24(2)(b) poses a different - and independent - test. However, applied to this case, the question whether the applicant has been "genuinely seeking to engage in remunerative work, [and] that he or she would, but for that incapacity, be continuing to so seek..." must be addressed in a realistic way, having regard to the nature and extent of the incapacity; cf Hall v Repatriation Commission (1994) 33 ALD 454. Applied to this case, to insist that this applicant pay some kind of lip service to a statutory requirement on a finding that he had no residual capacity for any kind of work after he left his cleaning job with Berkeley, goes beyond what we believe Parliament intended.

34. In the result, we find that the applicant satisfies the requirements for Special Rate pension. It follows that the decision of the Repatriation Commission dated 2 September 1997 is set aside.

I certify that the 34 preceding paragraphs are a true copy of the Reasons for the Decision herein of Deputy President P Gerber, Captain ET Keane and Dr KP Kennedy, Members.

Signed: Robert Hayes

Associate

Date/s of Hearing 20.10.99

Date of Decision 5.11.99

Counsel for the Applicant

Solicitor for Applicant Mr G Mylne, Advocate

Counsel for the Respondent

Solicitor for the Respondent Mr J Stoner, Departmental Advocate