Pham and Repatriation Commission [2002] AATA 1279 (10 December 2002)

Last Updated: 12 December 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1279

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1204

VETERANS' APPEALS DIVISION )

Re HOANG PHAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr M E C Thorpe Member

Date 10 December 2002

Place Sydney

Decision The Tribunal sets aside the decision under review, being the decision of the Repatriation Commission dated 10 April 2001 as affirmed by a delegate of the Repatriation Commission on 6 August 2001 to find that Mr Pham Hoang, the Applicant in these proceedings, was not permanently incapacitated for work pursuant to section 37AA of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that Mr Pham is permanently incapacitated for work within the terms of section 37AA of the Veterans' Entitlements Act 1986 and, therefor eligible for the invalidity service pension on and from 5 February 2001.

..............................................

Ms G Ettinger

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - invalidity service pension - whether veteran permanently incapacitated - assessment of impairment under Chapter 4 of GARP - veteran permanently incapacitated and eligible for invalidity service pension - decision set aside.

Legislation

Veterans' Entitlements Act 1986 - ss 37; 37AA; 120(4)

Veterans' Entitlements (Invalidity Service Pension - Permanent Incapacity for Work) Determination 1999 - Clause 5

Social Security Act 1991 - ss 94(1); 94(2)

Guide to the Assessment of Rates of Veterans' Pensions - Chapter 4

Case Law

Van Long Nguy v Repatriation Commission (AAT, 20 March 2002, No N2001/513)

REASONS FOR DECISION

10 December 2002 Ms G Ettinger - Senior Member Dr M E C Thorpe - Member

1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission, the Respondent in these proceedings, dated 10 April 2001 as affirmed by a delegate of the Repatriation Commission on 6 August 2001 to find that Mr Pham Hoang, the Applicant in these proceedings, was not permanently incapacitated for work pursuant to section 37AA of the Veterans' Entitlements Act 1986 ("the Act"), and that he was therefore ineligible for invalidity service pension.

2. The Applicant was represented at the Hearing by Mr T McCombe of the Vietnam Veterans' Association, and the Respondent by Ms R Henderson of counsel. The Tribunal was assisted by Mr Paul Ho, an interpreter in the Vietnamese language.

LEGISLATION

3. The relevant legislation in this matter was the Veterans' Entitlements Act 1986, ("the Act"), in particular sections 37, 37AA and 120(4).

4. The relevant instrument in this matter is the Veterans' Entitlements (Invalidity Service Pension - Permanent Incapacity for Work) Determination 1999. Paragraph 5 gives the circumstances regarding permanent incapacity and states as follows:

"5 Circumstances of permanent incapacity

(1) A person is permanently incapacitated for work for paragraph 37(1)(c) of the Act if the person:

(a) is permanently blind in both eyes; or

(b) is a veteran to whom section 24 of the Act applies; or

(c) satisfies subsection (2).

(2) A person satisfies this subsection if:

(a) the person has an impairment that, if it were an injury or disease for the Guide to the Assessment of Rates of Veterans' Pensions, would result in a combined impairment rating of 40 or more under Table 18.1 in that Guide; and

(b) solely because of the impairment, the person is permanently unable to do work for periods adding up to more than 8 hours per week; and

(c) the Commission is satisfied that the impairment is permanent."

ISSUE BEFORE THE TRIBUNAL

5. The issue before the Tribunal was:

* whether Mr Pham is permanently incapacitated for work within the terms of section 37AA of the Act; and if so,

* whether he is therefor eligible for the invalidity service pension.

EVIDENCE BEFORE THE TRIBUNAL

6. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-documents") as Exhibit R1 and the following other documents.

ITEM DATE NAME

Applicant's Letter to the Department of Veterans' Affairs 10 November 1999 Exhibit A1

Service Questionnaire and Attachments 10 November 1999 Exhibit A2

Report of Dr Dinnen, Consultant Psychiatrist, and Attachments 22 May 2002 Exhibit A3

Clinical Notes of Dr Lanh Nguyen Various Exhibit R2

Report of Dr Burns, Occupational Physician 3 December 2001 Exhibit R3

Bundle of Documents from Centrelink Various Exhibit R4

Report of Dr George, Consultant Psychiatrist, Health Services Australia Ltd 3 March 2002 Exhibit R5

mr pham hoang - the applicant

7. Mr Pham, whose date of birth is 12 November 1946 and whose statement in the form of a letter was before the Tribunal as Exhibit A1, told the Tribunal that he served in the South Vietnamese Army for eight years from 1966. He also said that he was discharged in 1971. (The Tribunal noted from T3/10 that Mr Pham was discharged from the Army in 1974). Mr Pham said that before he joined the Army in Vietnam, he was a fisherman. The Applicant said that post discharge he was sent to a re-education camp for three months and was submitted to torture there. The Tribunal noted that Mr Pham was naturalised in 1988 and is an Australian citizen. He has eligible service and entitlements under the Act for invalidity service pension provided he can meet the tests.

8. Mr Pham said that post discharge he was hospitalised for a year due to pain from his shoulders, wounded during service, and for his leg. He said that he came to Australia in 1976 having first spent nine months in Malaysia. Mr Pham said that in Australia he worked as a machine operator in a factory for three years and left because the work ran out. He said that he then bought a boat in 1984, and worked as a fisherman for four years, but could not continue after 1989 because of pain in his leg and shoulder. Mr Pham said that he did not work after that date, claimed social security payments, and received disability support pension. He said that those payments were his only source of income. The Applicant said that when he had his fishing boat, his wife was also working but had ceased in 1989.

9. Mr Pham said that he now lived at Greenacre and owned that house which he had financed partially by selling his boat and his van. Mr Pham told the Tribunal that he borrowed $80,000 from the Commonwealth Bank, and that the house cost $103,000. He said that he had eight children ranging in age from 34 to 11 years.

10. Mr Pham said that he was having medical treatment from Dr Law and had consulted him in excess of 10 times, the last time having been in June 2001. He said that medication helped him only a little. Mr Pham said in reply to cross-examination that he had first consulted Dr Law two years ago, that his head and arm and legs were "very sick". Mr Pham told the Tribunal in reply to Ms Henderson that he was in mental crisis when he first consulted Dr Law, and that he had pain in his shoulder, back, buttocks and legs. He said that he had troubles in his family, his wife nagged him, and his children did not want to stay at home. He said he was quarrelsome, and said that he told Dr Law he slept only two to three hours a night.

11. Mr Pham said that he still consulted Dr Lanh (Nguyen) whom he first saw in 1988 for sleep problems. He said that he told the doctor in 1989 that he was anxious, slept badly and thought he had heart problems. He said that memories of war, and Vietnam came into his mind from time to time, perhaps once a week or month. He said that he would then have a mental crisis and ask his friend or his wife to help get him out of it. When asked about intrusive thoughts, Mr Pham said that when he was working, he did not have them. Mr Pham said that he had told Dr Law but not Dr Lanh about this.

12. Mr Pham also said that he was referred to Dr Pope.

13. When asked by Ms Henderson why he had told Dr Law that he last worked three years previously, which was 1997, Mr Pham said that he had been employed planting trees, very tiny trees, in 1997. He said that at home he used hand shears to clip his small lawn and did not plant vegetables. Mr Pham said that he did not do much at all, except lie down, and watch television. He said he could drive short distances, that is, not for more than 15 minutes.

mr nguyen dinh kinh - interpreter

14. Mr Nguyen who accompanied Mr Pham to the Hearing, and whose date of birth is 28 September 1945, gave oral evidence, telling the Tribunal that he was an interpreter from 1966 - 1972. He said that he spent a month in the Armed Forces Training School learning military terminology and then worked with the Australian Army. Mr Nguyen said that he had commenced training at a seminary and had studied philosophy, theology, French, Latin and English.

15. Mr Nguyen said that he assisted Mr Pham, interpreting for him at doctors' appointments. He said that he assisted when Mr Pham attended for the interview with Dr Dinnen.

dr a dinnen - psychiatrist

16. Dr Dinnen, whose report and "Impairment Worksheet" of 22 May 2002 was Exhibit A3, told the Tribunal that Mr Pham suffered severe chronic psychiatric illness, and his presentation was that of major depressive illness. He said that Mr Pham had suicidal tendencies and underlying PTSD. He said that Mr Pham did not use the word depression to describe his feelings, but rather, reported that his head hurt, he was feeling sick inside and had memory loss. Dr Dinnen indicated difficulties in getting an accurate history, although he was able to say that Mr Pham gave up work, saying he was feeling "sick inside". He said that ideally more information about Mr Pham's early life, and service life would have been useful. Dr Dinnen said this was possible to elicit in a well patient, but said that with someone like Mr Pham who was ill, it was difficult.

17. When asked about Dr Law, Dr Dinnen stated that Dr Law had a unique advantage in that he was of ethnic background, and that he worked with Asians. He described Dr Law's clinical acumen as good, and better than many others. He commended Dr Law's management of Mr Pham and said his empathy was useful.

18. Dr Dinnen said that the medication Deptran, which had been prescribed for Mr Pham, although not a popular one, was well regarded, and gave some symptomatic assistance, particularly with sleep. He discussed dosage.

19. When questioned about Dr George's diagnosis, Dr Dinnen opined that Dr George had underestimated the extent of Mr Pham's difficulties. He said Mr Pham had a diagnosis which could not be missed, with impairment and limitations. Commenting on the psychometric testing Dr George had suggested Mr Pham undertake, Dr Dinnen said that severe depression could at times be mistaken for dementia and that this may have caused Dr George to so suggest. He added however that memory loss was typically part of dealing with traumatic experiences.

20. Appended to Dr Dinnen's report at Exhibit A3, was his GARP assessment of Mr Pham. He rated the Applicant at 48 impairment points, and opined that he did not believe the Applicant capable of working as much as, or more than eight hours per week because of his chronic psychiatric illness.

21. In his report at Exhibit A3, Dr Dinnen concluded by opining as follows:

"The history, presentation and the available documentation provides strong support for the diagnosis of post traumatic stress disorder associated with major depression. His depressive illness has worsened as indeed has the underlying post traumatic stress disorder, as a consequence of his inability to find employment because of psychosocial factors."

dr s law - psychiatrist

22. There were reports of Dr Law at T6 written to Dr H Pope, general practitioner, who had referred Mr Pham. Dr Pope had also completed a "Service Pension Claim - Invalidity Details" for Mr Pham (T6/29). In Dr Law's first report dated 24 July 2000, (T6/30), he discussed Mr Pham's headache and insomnia, opining also that: "Mental examination revealed he was anxious and dejected ...". He also found that Mr Pham was suffering PTSD "as a result of his past adverse military and re-education experiences." Dr Law added: "I counselled him and I advised him on non-drug ways of relaxation. ... I also prescribed Deptran 50 mg. nocte."

23. In a further report of 11 September 2000, (T6/31), Dr Law again wrote to Dr Pope that he had seen Mr Pham on three occasions, 18 July, 7 August and 5 September 2000. He concluded on the last occasion that Mr Pham was suffering chronic PTSD which had become:

"... moderately severe and disabling for some months at least. His right hip pain and bilateral shoulder pain also have probably undermined his mental resilience. The prospects of gainful employment in the near future are very bleak indeed. A GARP assessment has been done ... yielding a score of 43".

dr t nguyen - medical advisor health services australia ltd

24. Dr Nguyen, whose report of 1 March 2001 was before the Tribunal at T7, took a history, noted that Mr Pham's then diagnoses were neck and back pains and PTSD, and that a referral to an independent psychiatrist was indicated.

25. Dr Nguyen also completed an "Emotional and Behavioural Condition - Medical Impairment Assessment" (T7/37) dated 1 March 2001.

dr g george - psychiatrist

26. Dr George, whose report of 21 March 2001, the result of an examination of Mr Pham carried out at the request of Dr Nguyen, Health Services Australia Ltd, was before the Tribunal at T8/45, also gave oral evidence. His further report dated 3 March 2002 was Exhibit R5.

27. When asked whether Mr Pham was malingering, he gave an explanation of how he measured symptoms versus objective findings, and opined that Mr Pham had not improved over time. He said that malingering in this case was a possibility but not a probability. He said that Mr Pham's condition was chronic and treatment resistant, telling the Tribunal his understanding was that only homeopathic treatment of Mr Pham had been undertaken for the past six years.

28. Dr George also commented on Mr Pham taking Deptran, saying it was given at a homeopathic dosage for sedative effect and to suppress nightmares only, and that for major depression, larger doses were necessary. He told the Tribunal he understood the dosage had been decreased because Mr Pham had found that the medication made him drowsy.

29. When asked about PTSD, Dr George referred to DSM IV and listed the criteria there. He said that PTSD had to occur within a month of the stimulus which caused it, and that it caused impairment to social, sexual and occupational functions. He said however that there could be delayed onset and that the trauma of war was cumulative. Referring to Mr Pham, Dr George said that he had a reasonable level of functioning, drove the children to school, took care of his personal hygiene, cooked breakfast and related to people around him. When asked whether Mr Pham had organic brain damage, Dr George said that he considered assessing the source of the memory deficit by psychometric testing. When asked whether Mr Pham had major depression, he said that Mr Pham had a low grade depression. Dr George reported Mr Pham could share a joke. He added that Mr Pham probably had an untreated grumbling major depression which could become chronic. He said that most patients responded to antidepressants but that to stay well, the dosage had to be appropriate and the patient had to continue taking the drug. Dr George also said that it was possible that depression could mask PTSD. In his written report dated 21 March 2001 (T8/49), Dr George opined that Mr Pham "does have some residual symptoms of a chronic post traumatic stress disorder but not sufficient to prevent him from being engaged in either part-time or full-time work sometime in the future."

30. The Tribunal in reviewing Dr George's second report, dated 3 March 2002 noted that he considered Mr Pham was more alert on the second examination. He wrote that:

"His affect was responsive during the interview and he smiled on several occasions. ... my opinion has not altered greatly from my original report... I believe that he has elements of post-traumatic stress disorder and may suffer dysthymic disorder, which is really a diagnostic category applied to people who suffer fairly prolonged depression over extended periods of time, usually more than two years. However, I do not believe that this condition in itself prevents him from, at least, doing part-time work."

31. Dr George rated Mr Pham at seven in the GARP ratings.

dr n rose - medical advisor health services australia ltd

32. Dr Rose, whose report of 29 March 2001 was before the Tribunal at T9, conducted a file assessment of Mr Pham, and concluded that although the Applicant had residual symptoms of PTSD, these would not be sufficient to prevent him from being engaged in at least part-time light sedentary work. Dr Rose's "Work Test Questionnaire" was at T9/51.

dr m burns - occupational physician

33. Dr Burns' report dated 3 December 2001 was before the Tribunal as Exhibit R3. He rated the Applicant at 31 impairment points for his PTSD, which Dr Burns rated as moderately severe, and awarded no points for cervical or lumbar spondylosis.

34. Dr Burns also discussed Mr Pham's memory loss which he characterised as "rather selective." Dr Burns opined that he was uncertain whether it was organic in nature, and suggested that psychometric testing might assist.

35. As to employment; Dr Burns opined that he believed Mr Pham could have worked more than eight hours a week with his medical conditions at the time of examination. However, Dr Burns observed that he had been unemployed for more than ten years, and that Mr Pham's age and lack of skills and qualifications would play a greater role in his inability to work than his medical problems.

SUBMISSIONS AND CONCLUSIONS

36. The Tribunal had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding Mr Pham's claimed invalidity to assess whether he was eligible for the service invalidity pension pursuant to section 37AA of the Act. The Tribunal noted that should the Applicant be successful, the date of effect would be 5 February 2001.

37. The Tribunal noted that Mr Pham had been a Vietnamese national, served in the Army in his former homeland, been granted Australian citizenship in 1988, and that he now has entitlements under the Act for invalidity service pension provided he can satisfy the requisite tests.

submissions of the applicant

38. Mr McCombe submitted, referring to Mr Pham's letter at Exhibit A1, that he had suffered traumatic experiences during war, and that from Exhibit A2 it was clear that the Applicant had a psychiatric condition. He had been prescribed Mogadon by Dr Lanh in 1989.

39. Mr McCombe submitted that the treating psychiatrist, Dr Law, was in the best position to diagnose and treat Mr Pham. He also referred the Tribunal to T6/32, noting that Mr Pham was rated at 43 impairment points in the GARP assessment by Dr Law. Mr McCombe submitted that Dr Dinnen had come to the same conclusion, that is, Mr Pham was unable to undertake employment, and had rated him at 48 impairment points. He submitted that this was in line with Dr Law's views and treatment. Referring to Dr George, Mr McCombe submitted that he had agreed that Mr Pham probably had major depression which can mask symptoms of PTSD. He told the Tribunal that he was relying on the decision in Van Long Nguy v Repatriation Commission (AAT, 20 March 2002, No N2001/513).

submissions of the respondent

40. Ms Henderson submitted that it was difficult to form a view of the Applicant's work history. She submitted that Mr Pham had told the Tribunal that he worked in a factory for three years, bringing the date to approximately 1981, that he then had a fishing boat from 1984 which he sold in 1990, and that he was now seeking invalidity service pension. Ms Henderson, in acknowledging that Mr Pham received the disability support pension given by Centrelink, submitted that the tests there were different from those applicable in this case.

41. Ms Henderson submitted that the clinical notes of Dr Lanh from December 1988 recorded insomnia and that on 3 July of that year, Mr Pham was treated with counselling and Mogadon. She noted that was the first record of sleep disturbance, with a further visit to Dr Lanh on 22 February 1989 for headache, anxiety and depression. She noted that the next visit was years later, in 1994, after the fishing business had ceased, and that Mr Pham was then treated for haemorrhoids. In 1999 he had surgery on his right wrist for a ganglion.

42. What was not available Ms Henderson suggested, was any evidence that Mr Pham had left the workforce because of any physical disabilities. Ms Henderson submitted that there was talk of spondylosis, but that Dr Burns mentioned no treatment or intervention for physical ailments; there was no referral to any orthopaedic specialist; no history of psychological problems, and no particular reason for ceasing work. There was no report of the treating general practitioner Dr Lanh before the Tribunal for the Hearing, Ms Henderson submitted, nothing to indicate that Mr Pham had any shoulder, back, leg or hip problem. She submitted that it was accepted Mr Pham had experienced short term psychological distress in 1988/89.

43. As to psychological wellbeing; Ms Henderson submitted that Dr George had indicated that Mr Pham functioned well after arrival in Australia in 1978. The success of his children was an indication of that, she submitted. She said then that it was of interest that without any warning, he suddenly left work in 1989, and submitted that the Tribunal could not be satisfied that he had not been earning since that time.

44. Ms Henderson conceded that Dr Burns had reported limited movement but that there was evidence before the Tribunal that Mr Pham could trim the lawn and could bend to do so.

45. Ms Henderson submitted that Mr Pham seemed to have been well from 1989 until he consulted Dr Pope and Dr Law in connection with veterans' pension issues in 2000. She drew the attention of the Tribunal to three interviews with Dr Law in 2000 (T6/31). She noted further that there had been no medical evidence over the past two years, and submitted that the report of Dr Law was not sufficiently convincing for the Tribunal to conclude satisfactorily that Mr Pham had PTSD. Ms Henderson submitted that in Mr Pham's case, treatment had not been attempted, and it was not possible to say that the depression was permanent.

46. Ms Henderson also emphasised that both Drs Dinnen and George had agreed that the dosage of Mr Pham's medication was sub-therapeutic, and that where frequent relapses occurred in a patient, medication was maintained indefinitely. Ms Henderson submitted that the Tribunal note Dr Dinnen's endorsement of Dr Law's treatment of Mr Pham, prescribing Deptron. She emphasised however that this was in contradiction of Dr Dinnen's diagnosis of major depression, rather than a sleep disorder, for which Mr Pham was being treated (appropriately), with Deptron.

47. Ms Henderson asked that the Tribunal give weight to the thoughtful evidence of Dr George, noting the treatability of depression, and noting that Mr Pham has a good level of functioning. Dr George's evidence had been that Dr Pham was able to get up in the morning, prepare breakfast for the family and drive his children to school. Dr George had also reported that Mr Pham could smile.

48. Ms Henderson submitted in summary that the evidence before the Tribunal indicated a lack of intervention towards Mr Pham for any physical problems. He may have had a treatable major depression she submitted, but there was no indication of impairment either way. The decision she submitted, should therefore be affirmed.

the issue of the appropriate interpreter

49. Ms Henderson made an issue regarding the suitability of interpreters used to assist when Mr Pham had his various assessments. Ms Henderson submitted that those interpreters were properly trained, whereas the interpreter used by Dr Dinnen when interviewing Mr Pham was a friend of the Applicant, and had only one month of training. Ms Henderson submitted that accordingly, the history taken by Dr Dinnen could be viewed as more inaccurate than Dr Law's. The Tribunal noted that Dr Dinnen had recorded in his report (Exhibit A3) that the interpreter had failed to attend, and that accordingly, he had invited Mr Nguyen who had accompanied Mr Pham to the interview, to assist. The Tribunal noted that Dr Dinnen recorded Mr Nguyen had known Mr Pham for three years through the Vietnam Veterans' Association where he was a volunteer worker, and noted further that Mr Nguyen gave evidence of his tertiary education and of his service as an interpreter for six years with the Australian Army.

50. The Tribunal noted further Ms Henderson's submission that Dr Law used his secretary whose qualifications were unknown, as interpreter.

51. Ms Henderson submitted that Dr George had an interpreter in the Vietnamese language present when he interviewed Mr Pham and that he was in the best position to obtain the most accurate information.

the tribunal's deliberations

52. The Tribunal, having heard the submissions of both parties was mindful first of cultural issues which need to be taken into account in making assessments of Tribunal applicants. Dr George made adverse comments about Mr Pham in relation to his hesitancy to give his birth date and the names of his children, and stated in his report that Mr Pham could share a joke, and in his report of 3 March 2002, that "... he smiled on several occasions ...". The Tribunal is mindful that the details of birth dates, names of children, and smiling have cultural implications which Dr George may not have taken into account in relation to Mr Pham. The memory loss referred to by him may of course also be referable to the depression which none of the doctors have denied Mr Pham suffers. The Tribunal noted also that Dr George mentioned Mr Pham had been under treatment for six years for his depression, whereas the evidence before the Tribunal indicated that notwithstanding he may have been depressed for many years previously, Mr Pham had first consulted Dr Law in the year 2000, some two years previously. The Tribunal considered that whilst Dr George's medical diagnosis and other views may be given weight, the above noted comments he made about Mr Pham smiling and hesitating about his birthdate must be rejected as irrelevant and inappropriate.

53. The Tribunal was also mindful of the discussion regarding the different qualifications of the interpreters used to assist Mr Pham and his doctors. The Tribunal is mindful that a full history was difficult to obtain due to Mr Pham's depression and/or PTSD and some language problems, and that Dr Dinnen commented on that. However the Tribunal did not need to rely on differences in interpreting skills of the interpreters to come to its decision. It did not find either the interpreter who assisted at the Tribunal or Mr Nguyen Dinh Kinh inappropriate as interpreters, and had no specific knowledge of Dr Law's secretary's skills. As will be seen below, there was sufficient suitable medical information and the evidence of the Applicant himself which guided the Tribunal in making its decision.

54. As to Mr Pham's conditions; the symptoms manifested physically were the cervical and lumbar spondylosis and the psychiatric illnesses, PTSD and depression. With regard to the physical conditions; the radiological evidence available (T6/34), was a report of 31 August 2000 which essentially reported no objective abnormalities. Mr Pham however, reported pain in his shoulder, back, buttocks and legs. He also told the Tribunal that when he went to consult Dr Law, his head, arms and legs were "very sick". The Tribunal noted also that the majority of the doctors using the GARP tables gave Mr Pham a nil impairment rating for his physical disabilities. Dr Pope did diagnose cervical and lumbar spondylosis (T6/29). The Tribunal is mindful that reports of pain are likely to have related more to Mr Pham's psychological than his physical state, and moved to consider his psychiatric conditions.

55. As to Mr Pham's psychiatric conditions; the table below charts the opinions of the various doctors and their impairment ratings according to the guidelines in Chapter 4 of GARP as follows.

Emotional & Behavioural Consequence of Accepted Psychiatric Conditions Dr George Dr Dinnen Dr Burns Dr Law Respondent (T9/55) Dr Nguyen (T7/37)

Table 4.1 Subjective Distress Nil Life not worth living, upset, angry, suicidal ideas, dreams and nightmares about war service, headache, poor sleep 15 Very frequent symptoms and is often unable to distract himself; some degree of nightmares but no flashbacks; no report of intrusive thoughts today 10 Headache, insomnia, bad dreams, irritability, forgetfulness hard to distract himself from the distress 15 Forgetfulness, poor memory, nightmares, insomnia 10 Forgetfulness, poor memory, nightmares once/week, insomnia 10

Table 4.2 Manifest Distress Nil Withdrawn, impaired memory and concentration, objectively depressed, poor communication, resists talk of war service experiences 15 Someone who was knowledgable about Mr Pham would know he was depressed 6 Facial expression and spoken words clearly convey to even strangers that he's very significantly distressed 10 Distress is apparent, pre-occupation with symptoms is noticeable 6 Likely to match rating to Respondent 6

Table 4.3 Functional Effects Sleep Disturbance- Occasional Nightmares - 2 Nil reported but variable functioning likely to cause problems Nil (?2) No comment 2 Impaired concentration affects him at home (forgetting to lock windows/door) on going out (watching for oncoming cars of the road) 2 Can perform daily tasks, tends to forget at times 1 Can perform daily tasks, tends to forget at times 1

Table 4.4 Occupation Difficulty in maintaining regular employment due to insomnia 2 Unable to work 8 His PTSD would make work more difficult but not impossible; appears to have been present for many years yet he was able to work as a fisherman in the late 1980s 5 Totally unfit for work 8 Long periods (weeks or months) of absence from work 3 Long periods (weeks or months) of absence from work 3

Emotional & Behavioural Consequence of Accepted Psychiatric Conditions Dr George Dr Dinnen Dr Burns Dr Law Respondent (T9/55) Dr Nguyen (T7/37)

Table 4.5 Domestic Situation His insomnia may make him more irritable 1 Arguments with wife, poor commu - -nication, sleeps separately 3 No comment 3 Often has heated argument with wife. Patient and wife sleep in different bedrooms 3 No disagreement, wife helps remind him of tasks; helps in reading street directory 0 No disagreement; wife helps remind him of tasks; helps in reading street directory 0

Table 4.6 Social Interaction More withdrawn now, than when employed previously 1 Depression; severely limited and restricted compared with several years ago; relies on son Thong, for transport 5 Leisure and outside interests have significantly decreased 5 Only has one good friend; greatly reduced social interests 3 Never had many friends, now mostly keeping to self and few friends only 3 Never had many friends, now mostly keeping to self and few friends only 3

Table 4.7 Leisure Activities He appears more family focussed than pursuing his own interests 1 Church weekly, no interests outside family and home 3 Leisure and outside interests have significantly decreased 5 Nil hobbies 5 Does not have many hobbies 3 Does not have any hobbies 3

Table 4.8 Current Therapy He continues to see his psychiatrist, Dr Law and be medicated 3 Attends psychiatrist regularly, medications have been prescribed 5 Low dose medication and not having intensive treatment 3 On regular supportive therapy & use of psychotropic medications with only limited therapeutic responses 5 Rely on Dr Law, psychiatric treatment, psychotherapy 2 Seeing Dr Law, 3 mths ago for counselling (started seeing him July 2000) 2

Final Rating 7 48 31 43 25 25

Cervical and Lumbar Spondylosis - - Nil - Nil -

Date 23 May 2002 20 May 2002 3 December 2001 11 September 2000 10 April 2001 1 March 2001

56. The Tribunal noted that both Dr Pope, general practitioner, who referred Mr Pham to psychiatrist Dr Law, and Dr Law diagnosed chronic PTSD and depression, and assessed the conditions as permanent and deteriorating (T6/29). Dr Dinnen who assessed the Applicant for medico-legal purposes also reported chronic psychiatric illness and stated that his presentation was of major depressive illness. He opined that Mr Pham suffered PTSD associated with major depression. The abovenamed doctors linked the illnesses causatively to Mr Pham's war experiences. Dr George who examined the Applicant on behalf of the Respondent, agreed there could be delayed onset of PTSD, and that the trauma of war was cumulative. He agreed that the PTSD was chronic and treatment resistant, yet he gave Mr Pham nil ratings for Tables 4.1 (subjective distress) and 4.2 (manifest distress) according to GARP. The Tribunal, having assessed the medical evidence and having had the benefit of seeing Mr Pham and hearing his evidence, agreed with Dr Dinnen's opinion that Dr George had underestimated the extent of Mr Pham's difficulties. The Tribunal noted that Dr Burns also diagnosed moderately severe PTSD and awarded 31 impairment points for it.

57. The Tribunal concluded from the evidence before it, including the medical evidence and that of the Applicant, and taking the tests in DSM-IV into account, that with Mr Pham's accounts of depression, memory problems, flashbacks, poor concentration, insomnia, intrusive thoughts and flashbacks, the diagnoses of PTSD and depression, and their causative connection to the Applicant's war experiences were the correct ones to make. The Tribunal was mindful that Dr Law is the treating doctor, that his ethnic origin is that of the Applicant, and that he would understand Mr Pham and his problems. By definition treating doctors see their patients far more often and know more about them than medico-legal specialists, whose assistance the Tribunal of course also values. The Tribunal noted that the consistently lowest GARP assessments were given by Dr George, and that given the comment about him above, the Tribunal found his evidence and assessment of Mr Pham the least helpful.

58. The Tribunal noted that there was discussion that Mr Pham's medication as prescribed by Dr Law, was sub-therapeutic, (Dr George, Dr Dinnen), and Ms Henderson's submission that as the PTSD had not yet been appropriately treated, it had not yet become permanent. The Tribunal noted the low dosages of medication prescibed for Mr Pham, noted also his account of side effects, and relied on Dr Law's treatment by counselling combined with a low dose of drugs. The Tribunal rejected, on the basis of the medical evidence, Ms Henderson's submissions that Mr Pham's PTSD had not stabilised and was not permanent.

59. As to Mr Pham's capacity to work; the Tribunal was mindful of Ms Henderson's submission that there was little evidence regarding Mr Pham's work history and the circumstances under which he suddenly ceased work in 1989. She submitted he had functioned well after his arrival in Australia, and reviewing the house purchase, submitted the Tribunal should not be satisfied that he had not been earning in employment since that time.

60. In that regard the Tribunal, having accepted that Mr Pham suffered PTSD and depression, as well as pains in his body, noted that:

* Mr Pham is receiving disability support pension, pursuant to section 94 of the Social Security Act 1991, where the tests are as follows:

"Qualification for disability support pension

94 (1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.

94 (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training--such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

Note: For work see subsection (5)."

* Health Services Australia Ltd medical adviser, Dr Rose, opined that Mr Pham's conditions did not prevent him from doing full time work, and was therefore fit for at least part time light sedentary work.

* Dr George diagnosed dysthymic disorder pursuant to Axis I of DSM-IV and acknowledged the Applicant had some residual symptoms of PTSD, but was able to engage in either part or full time work in the future.

* The Respondent, in a decision of 10 April 2001, decided that Mr Pham's level of incapacity which was rated at 25 points under GARP (T10), did not preclude him from working more than eight hours per week; further that the medical impairment was not permanent pursuant to section 37AA of the Act.

* Dr Burns opined that Mr Pham had worked with his conditions for many years as a fisherman, and that the PTSD would make work difficult but not impossible.

* Dr Dinnen and Dr Law considered Mr Pham unfit for work.

61. The Tribunal was mindful that there were factors other than Mr Pham's PTSD and depression which it has found were causally related to his war service which could have impacted on his employment capabilities. They may have been time out of the workforce, language, age and others which it cannot take into account. The Tribunal finds however, in particular from the assessments of Dr Dinnen and the treating psychiatrist Dr Law, in their total assessments under Chapter 4 of GARP (see table above), and Mr Pham's evidence that he is unfit for work at all, and certainly for any period in excess of eight hours per week due to his PTSD and depression.

62. The Tribunal in assessing Mr Pham's impairment pursuant to the Tables in Chapter 4 of GARP found as follows after reviewing the medical evidence and that of Mr Pham.

* The Tribunal noted that with regard to Table 4.1 the Respondent rated Mr Pham at 10 points which indicated it agreed he had "Very frequent symptoms causing moderate distress. The veteran will often be unable to distract himself or herself from the distress." Both Dr Dinnen and Dr Law rated Mr Pham at 15 points which is: "Persistent symptoms causing considerable distress. Relief for the veteran from that distress is difficult to achieve even with a high level of support and reassurance." The Tribunal took into consideration also Mr Pham's evidence of his distress, and the flashbacks he suffers for which he requires assistance, and also considered the criteria for the ratings in Table 4.1. The Tribunal found that 15 impairment points was the appropriate rating for Mr Pham.

* The Tribunal noted that with regard to Table 4.2 the Respondent rated Mr Pham at six points which indicated it agreed "Distress is apparent, and/or the veteran's pre-occupation with the symptoms is sometimes noticeable to astute observers or persons familiar with the veteran." Dr Law rated Mr Pham at 10 points which were "Obvious distress and pre-occupation with the symptoms is evident to casual observers and even persons unfamiliar with the veteran." Dr Dinnen on the other hand, rated Mr Pham at 15 points which was "Obvious continual distress." The Tribunal took into consideration Mr Pham's evidence of his distress, and the flashbacks he suffers for which he requires assistance, and also considered the criteria for the ratings in Table 4.2. The Tribunal found that 15 impairment points was the appropriate rating for Mr Pham.

* The Tribunal noted that with regard to Table 4.3, the Respondent rated Mr Pham at one point which indicated it agreed he had "Minimal or no interferences with most aspects of living." Dr Law on the other hand, gave Mr Pham a rating of eight impairment points which meant he considered the Applicant had "Profound psychiatric impairment. Virtually all recreational, social or otherwise purposeful activities abandoned." The Tribunal took into consideration also Mr Pham's evidence of his functional effects, his evidence that he mostly lay down and watched television, but was able to make breakfast and drive short distances, and also considered the criteria for the ratings in Table 4.3. The Tribunal found that six impairment points was the appropriate rating for Mr Pham which meant it accepted that: "The veteran may be able to continue to function in everyday situations, but with gross restrictions."

* The Tribunal noted that with regard to Table 4.4, the Respondent rated Mr Pham at three impairment points, which indicated it agreed he had "Long periods (weeks or months) of absence from work." Dr Dinnen and Dr Law gave Mr Pham a rating of eight impairment points which meant they considered: "The veteran cannot work". The Tribunal was mindful it had to consider Mr Pham's inabilities from his war-caused injuries alone and not taking into account the social factors and length of time out of the workforce. In doing so, it noted his evidence of why he gave up work due to physical pain, and no doubt the depression which had been untreated at that time, and agreed that he cannot work and that eight impairment points was the correct rating for Mr Pham.

* The Tribunal noted that with regard to Table 4.5, the Respondent rated Mr Pham at nil impairment points, which indicated it agreed his illness had "Minimal or no effect on ordinary family life." Drs Dinnen, Burns and Law all rated Mr Pham at three points which indicated they accepted he had "Frequent conflict with family members." The Tribunal took into consideration the medical assessments as well as Mr Pham's evidence of his domestic situation, his evidence that he was bad tempered with his family and slept separately from his wife, and considered the criteria for the ratings in Table 4.5. The Tribunal found that three impairment points was the appropriate rating for Mr Pham.

* The Tribunal noted that with regard to Table 4.6, the Respondent and Dr Law rated Mr Pham at three impairment points, which indicated they agreed there was "Significant reduction in social interaction." Dr Dinnen and Dr Burns rated Mr Pham at five impairment points which meant they accepted he had "Substantial reduction in social interaction." The Tribunal took into consideration the medical assessments as well as Mr Pham's evidence of his social interaction, his evidence that he had only one friend, and did not go out, and considered the criteria for the ratings in Table 4.6. The Tribunal found that five impairment points was the appropriate rating for Mr Pham.

* The Tribunal noted that with regard to Table 4.7, the Respondent and Dr Dinnen rated Mr Pham at three impairment points, which indicated they agreed there was "Significant reduction in recreational activities." Dr Burns and Dr Law considered the Applicant rated five impairment points which meant they accepted he had "Loss of interest in most recreational pursuits." The Tribunal took into consideration the medical assessments as well as Mr Pham's evidence of his leisure activities, his evidence that he had did not go out, and lay down and watched television to the exclusion of other activities, and considered the criteria for the ratings in Table 4.7. The Tribunal found that six impairment points was the appropriate rating for Mr Pham which meant he had "Substantial reduction in most recreational pursuits".

* The Tribunal noted that with regard to Table 4.8, the Respondent rated Mr Pham at two impairment points, which indicated they agreed there was psychiatric treatment (medication and psychotherapy) being tried with other outpatient support. Drs George and Burns rated the Applicant at three points which meant they considered psychiatric treatment with regular supportive therapy was used or deemed necessary. Both Dr Dinnen and Dr Law rated the Applicant at five impairment points which meant there was "Need for intensive specialist psychiatric treatment on an outpatient basis, including medication and/or in-patient hospital care for short periods." The Tribunal took into consideration the medical assessments and the treatment as well as Mr Pham's evidence regarding his treatment, and considered the criteria for the ratings in Table 4.8. The Tribunal found that five impairment points was the appropriate rating for Mr Pham.

63. In summary the Tribunal found that, applying GARP, Mr Pham's impairment rating was 50 points.

64. The Tribunal finds that Mr Pham is permanently incapacitated for work within the terms of section 37AA of the Act; and therefore eligible for the invalidity service pension.

DECISION

65. Accordingly the Tribunal sets aside the decision under review being the decision of the Repatriation Commission dated 10 April 2001 as affirmed by a delegate of the Repatriation Commission on 6 August 2001 to find that Mr Pham Hoang, the Applicant in these proceedings, was not permanently incapacitated for work pursuant to section 37AA of the Veterans' Entitlements Act 1986. In substitution therefor, the Tribunal finds that Mr Pham is permanently incapacitated for work within the terms of section 37AA of the Veterans' Entitlements Act 1986 and, therefor eligible for the invalidity service pension on and from 5 February 2001.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, Dr M E C Thorpe, Member

Signed: .....................................................................................

Associate

Date of Hearing 5 September 2002

Date of Decision 10 December 2002

Representative for the Applicant Mr T McCombe

For the Applicant Vietnam Veterans' Association

Counsel for the Respondent Ms R Henderson

For the Respondent Repatriation Commission