Nguyen and Repatriation Commission [2002] AATA 27 (17 January 2002)

Last Updated: 22 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 27

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/853

VETERANS' APPEALS DIVISION )

Re CAC VAN NGUYEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr P Lynch Member

Date 17 January 2002

Place Sydney

Decision The Administrative Appeals Tribunal affirms the decision under review of 2 August 1999, being a decision of the Repatriation Commission as affirmed by the Delegate of the Repatriation Commission of 21 March 2000, holding that the Mr Cac Van Nguyen was not permanently incapacitated for work within the meaning of section 37 of the Veterans' Entitlements Act 1986.

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

Ms G Ettinger

Senior Member

CATCHWORDS

Veteran's Entitlements - Member of Air Force South Vietnam - eligibility for invalidity service pension - whether section 37(5) VEA satisfied - whether illness permanent -- whether Applicant sold business and ceased employment in order to gain pension - decision affirmed

LEGISLATION

Veterans' Entitlements Act 1986 sections 37, 57A, 120(4),

CASE LAW

Re Panke & Director-General of Social Services (1981) 4 ALD 179

Van Tran v Repatriation Commission [2001] AATA 583

National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562

REASONS FOR DECISION

17 January 2002 Ms G Ettinger Senior Member Dr P Lynch Member

1. The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission (T2) dated 21 March 2000, made pursuant to section 57A of the Veterans' Entitlements Act 1986 ("the Act"), which affirmed the decision of the delegate of the Repatriation Commission, the Respondent in these proceedings, dated 2 August 1999. The decisions made, held that Mr Cac Van Nguyen, the Applicant in these proceedings, was not permanently incapacitated for work within the meaning of section 37 of the Act.

2. The Applicant was represented at the Tribunal by Mr T McCombe of the Vietnam Veterans' Association and the Respondent by Ms R Henderson of Counsel.

ISSUE BEFORE THE TRIBUNAL

3. The issue before the Tribunal was whether Mr Nguyen was entitled to invalid service pension on the ground that he was permanently incapacitated for work within the meaning of section 37 of the Act.

LEGISLATIVE FRAMEWORK

4. The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act"), in particular section 37 (paragraphs 37(1)(c) and 37(2)(a) as in force at 31 December 1999), which follows:

"37 Eligibility for invalidity service pension

(1) Subject to subsection (6), a person is eligible for an invalidity service pension if the person:

(a) is a veteran; and

(b) has rendered qualifying service; and

(c) is, in the opinion of the Commissioner, permanently incapacitated for work.

Note 1: For veteran see subsection 5C(1).

Note 2: For qualifying service see section 7A.

(2) For the purposes of this section, a person is taken to be permanently incapacitated for work if:

(a) the degree of the permanent incapacity for work is 85% or more; or

(b) the person is permanently blinded in both eyes.

Additional eligibility criterion for Commonwealth veterans, allied veterans and allied mariners

(3) Subject to subsection (3A), a person who is a veteran by reason only of being a Commonwealth veteran, an allied veteran or an allied mariner must, in addition to meeting the requirements of subsection (1), have been an Australian resident for a continuous period of at least 10 years.

(3A) Subsection (3) does not apply to:

(a) a refugee; or

(b) a former refugee.

(4) For the purpose of applying subsection (3), where:

(a) a veteran has been an Australian resident during more than one period; and

(b) the longer or longest of those periods is less than 10 years but is not less than 5 years; and

(c) the aggregate of those periods is more than 10 years;

in the application of subsection (3) to the veteran, the period of 10 years specified in that subsection is to be reduced by a period equal to the period by which the aggregate is more than 10 years.

(5) Subsection (3) does not apply to a veteran if:

(a) the veteran became permanently incapacitated for work while the veteran was an Australian resident; and

(b) the veteran's permanent incapacity for work was not brought about with a view to obtaining a service pension or a social security pension; and

(c) the veteran does not have an enforceable claim against any person, under any law or contract, for adequate compensation in respect of the permanent incapacity.

(6) If:

(a) a veteran lodges a proper claim for an invalidity service pension before meeting the eligibility requirements referred to in subsection (1); and

(b) the veteran ceases to be an Australian resident after lodging the claim and before the claim is determined;

the veteran is not eligible for invalidity service pension unless:

(c) the day on which the veteran met all the eligibility requirements; and

(d) the day from which invalidity service pension would, if the claim were granted, be payable;

are earlier than the day on which the veteran ceased to be an Australian resident."

5. Section 57A of the Act provides:

"57A Application for review

(1) A request for review of a decision under section 57 must:

(a) be made within 3 months after the person seeking review was notified of the decision; and

(b) set out the grounds on which the request is made; and

(c) be in writing.

(2) If a request for review of a decision is made in accordance with subsection (1) the Commission must review the decision.

(3) If the Commission has delegated its powers under this section to the person who made the decision under review, that person must not review the decision."

6. The standard of proof applicable in this matter is that the Tribunal must decide all relevant matters to its reasonable satisfaction pursuant to section 120(4) of the Act, as follows:

"120 Standard of proof

...

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B."

EVIDENCE BEFORE THE TRIBUNAL

7. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-documents"), and the following other Exhibits:

NAME DATE DESCRIPTION

Report of Dr S Law 31 August 1999 Exhibit A1

Report of Dr G Smith 13 March 2000 Exhibit A2

Report of Dr S Law 2 April 2001 Exhibit A3

Report of Dr H Pope & Attached Care Plan 24 August 2001 Exhibit A4

Report of Dr S Law 22 August 2001 Exhibit A5

Report of Dr H Pope 12 October 1999 Exhibit A6

T-documents Exhibit R1

Report of Dr M Walden 19 April 2001 Exhibit R2

Report of Dr M Baz 5 March 2001 Exhibit R3

Clinical notes of Dr Quang 1990 - present Exhibit R4

8. Oral evidence was given by Mr Nguyen, the Applicant, and Dr M Walden, Consultant Psychiatrist. The Tribunal was assisted by an interpreter in the Vietnamese language, Mr Doan.

9. The Tribunal noted that the parties did not dispute that Mr Nguyen had service eligibility. The Repatriation Commission had determined that the Applicant was an Allied Veteran as defined in section 5C of the Act and had thus rendered qualifying service as defined in section 7A(1)(c) of the Act.

10. There was further no disagreement that he could not meet the ten year residence eligibility pursuant to section 37(3) of the Act. Any entitlement was therefore contingent on invalidity pursuant to sections 37(1)(c), 37(2)(a) and 37(5) of the Act.

evidence of mr cac van nguyen - the applicant

11. Mr Nguyen told the Tribunal his date of birth was 24 March 1949. He said that he had joined the Air Force in Vietnam in 1967 and was enlisted there until 1975 when the surrender came. He said that he was involved in battle with the enemy, the Tet offensive in 1968, and the long summer war in 1972. After the surrender he had been in a re-education camp for seven days, followed by a period where he was not incarcerated, but at the beck and call of the authorities, and had to appear and do whatever was ordered at any time. He said that he suffered torture and pain and was not allowed to say much.

12. Mr Nguyen said that after a time he asked to go back to work in the rice fields, and then in approximately 1976 organised his escape to the Philippines in a fishing boat. He said that he received permission to move to the USA in 1977, where he worked, amongst other things, in a hamburger shop, a clothing workshop and mowing lawns. The Applicant said that he first came to Australia in 1986 as a tourist, and to visit his sister. He said that he first met his wife in Australia, and travelled several times from the USA to visit her. Mr Nguyen said that between 1989 and 1990 he had worked selling merchandise and doing deliveries. He said that he married in Australia in 1989, and travelled to the USA with his wife in 1990, staying until their return to Australia in 1994. Mr Nguyen said that in the period between 1990 and 1994, he worked in a computer shop and did deliveries. Mr Nguyen also told the Tribunal that he had studied English and done a course to be a motor mechanic while in the USA, mainly in evening classes. He did not obtain a certificate as a motor mechanic. He said that his wife had studied hair dressing in the USA.

13. Mr Nguyen said that after his return to Australia, he opened a laundry and pressing service in Sydney in 1995. His wife's work was at home with two small children, and she did not work in the shop. The Applicant said that he employed staff right from the outset, because he had back pain and could not do all the work himself. He said that he closed the shop in 1999 because he had a lot of problems with stress, "pain in many places" and attended his doctor for back, neck and shoulder pain. He said that he had conflicts with his wife, and problems with his health.

14. The Applicant told the Tribunal that he closed the business down, but did not sell it because he was unable to, as he was in financial difficulties. In cross-examination, Mr Nguyen agreed that the landlord had increased his rent at approximately the time he had closed the shop in May 1999, and that the owner had not wanted to renew the lease because he had wanted to redevelop the site. The Applicant told the Tribunal that competition had increased, with more laundries opening in the vicinity of his shop, and that he suffered financial difficulties due to increased overheads and a reduction in the number of clients.

15. Mr Nguyen told the Tribunal in response to Ms Henderson's questioning that he attended at Dr Quang, his General Practitioner often in 1999, and that he also attended at that practice when he returned to Australia back in 1989/1990. Mr Nguyen said that he took medication for his blood pressure, but could not recall which doctor had prescribed it. He said that in 1999 he attended various doctors, not just at Dr Quang. He mentioned Dr H Pope, his General Practitioner, who had referred him to Dr S Law, Consultant Psychiatrist, and had arranged neck and back X-rays. Mr Nguyen agreed that he had been told about the possibility of obtaining a pension, and advised that Dr Pope could assist with the necessary paperwork.

16. Mr Nguyen told the Tribunal that he suffered headaches, and insomnia, but could not remember exactly when these conditions commenced. He said that he thought he had them in 1995, but could not, at that time, comprehend why. He said that he thought they would pass. Mr Nguyen was not able to give the Tribunal an indication of the names of the medications he had been prescribed over the years. He was also unable to indicate when his nightmares and sleep problems became more frequent.

17. Mr Nguyen was asked by Ms Henderson why he had completed the form at T6/33 which was a claim for the service pension by saying he was a refugee when in fact he had come to Australia as the husband of an Australian citizen. He said that he believed at the time that that was correct information because he had come in a fishing boat, and not as part of a family reunion.

18. Mr Nguyen said that he did not get on well with his wife because he was bad tempered and took it out on her and the children, (aged nine and eleven). The Applicant said that his wife operated a hair dressing shop in Sydney. He said he could not work and had applied for, and been granted Parenting Payment.

evidence of dr m walden - consultant psychiatrist

19. Dr Walden, whose reports of 9 March 2000 (T42) and 19 April 2001 (Exhibit R2) were before the Tribunal, gave oral evidence.

20. In her first report at T42, Dr Walden expressed her opinion that:

"He was very vague about his experiences, his symptoms, their duration and severity. He claimed to have difficulty with his memory, and initially appeared to even have difficulty remembering his birthdate. However, I formed the opinion that there was some exaggeration of this difficulty. ...

Overall, it seems likely that Mr Nguyen does suffer from Post Traumatic Stress Disorder, but I do not consider that his symptoms are overall sufficiently severe to preclude him from his usual work. His current not working appears as to be more related to the closure of his previous place of employment and the lack of being able to obtain other work, rather than a clear deterioration in his condition. I do not consider that he is permanently incapacitated for work on psychiatric grounds alone."

21. Approximately a year later on 19 April 2001, (Exhibit R2), Dr Walden opined as follows:

"Mr Nguyen currently has a Major Depressive Illness in DSM-IV terms and his mental state examination today is consistent with this. He describes frequent nightmares of earlier traumatic incidents and ongoing irritability and conflict with his family. I think he probably has Post Traumatic Stress Disorder, though, as in my earlier report, have noted the absence of avoidance features, which is somewhat unusual. ... I consider that his symptoms of Post Traumatic Stress Disorder are of mild to moderate severity...

Mr Nguyen's condition has changed since I last examined him and he is significantly more depressed, as outlined in the body of my report.

It is likely that Mr Nguyen's probable Post Traumatic Stress Disorder is permanent given that he describes symptoms dating back more than 20 years on this occasion and there has been little change with treatment. However Mr Nguyen managed to work for most of his life with his symptoms and it appears that the reason he ceased work was because of the lack of financial profitability of his business rather than a deterioration in his health....

Overall I do not consider that Mr Nguyen is 85% permanently incapacitated for work on the basis of his psychiatric conditions."

22. In oral evidence, Dr Walden told the Tribunal that the dosage of drugs Mr Nguyen had been prescribed by Dr Law was inadequate to treat a major depressive disorder, and that it was only recently that he had been receiving a therapeutic dose. The Tribunal was mindful of Mr Nguyen's evidence that his sessions with Dr Law were generally of approximately 15 - 20 minutes duration, noting Dr Walden's explanation that a patient such as Mr Nguyen would normally receive medication and counselling, which might take between 30 and 60 minutes per session. She added that a medication review would be of shorter duration.

23. Dr Walden was also asked to comment on the situation regarding the effect of the presence of an interpreter during a consultation, indicating that a patient might be less willing to speak openly. She said that in relation to the use of interpreters, there were also cultural and gender issues to be considered in regard to the patient. The Tribunal was mindful that Mr Nguyen had the use of Dr Law's secretary as an interpreter rather than the assistance of a professional interpreter when he attended at Dr Law's for consultations.

24. Dr Walden also told the Tribunal about the relationship between pain and depressive illness, saying that they were related and that all pain had a psychological component, so that unhappiness as a result of depressive disorder aggravated any given pain situation.

25. Dr Walden told the Tribunal that a biological depressive disorder generally abated even without treatment, but that with appropriate treatment, one could expect a result within weeks or months. She agreed in cross-examination that the more factors present, such as in Mr Nguyen's case, a depressive disorder, pain and an unhappy marriage, the greater the difficulty of treating him. Dr Walden agreed that the treating doctor had an advantage over a medico-legal person with regard to the patient, in that the treating doctor had the opportunity of observing the fluctuating conditions in a patient whereas the medico-legal doctor generally saw the patient once or twice only.

26. The Tribunal noted that Dr G Smith, Medical Adviser to Health Services Australia, (Exhibit A2), accepted the opinion of Dr Walden, who found that the Applicant was suffering from Post Traumatic Stress Disorder, ("PTSD"). but found that he was not permanently incapacitated for work on psychiatric grounds alone, and that his symptoms were not severe enough to preclude him from his usual work.

evidence of dr m baz - occupational physician

27. The report of Dr Baz of 5 March 2001, was before the Tribunal as Exhibit R3. Dr Baz had had access to other medical reports regarding Mr Nguyen in connection with the preparation of her report. Dr Baz commented as follows:

"Mr Nguyen, in my opinion, based on his current clinical presentation and the psychiatric reports available, has a psychiatric disorder, diagnosed as post-traumatic stress disorder. I consider this is to be mild to moderate, causing impact on his marital relationship and work ability.

He also has hypertension.

He describes right shoulder, neck and back pain. Examination is unremarkable and there are no specialist investigations available. This is probably musculo-ligamentous in origin and probably limits the physical exertions for which he is capable. ...

It is my conclusion that Mr Nguyen should be considered permanently incapacitated for work on the grounds of his psychiatric disability, and specifically of the depression associated with this."

evidence of dr s law - psychiatrist

28. The reports of Dr Law were before the Tribunal at T19,T29, and Exhibits A1, A3, and A5. Dr Law first examined Mr Nguyen in 1999, and his most recent report was dated 22 August 2001. Mr Nguyen had been referred to Dr Law by his General Practitioner, Dr Pope.

29. In his first report dated 25 May 1999, at T19, Dr Law opined as follows:

"Mr Nguyen has been suffering from some degree of post-traumatic stress disorder, as a result of his past adverse military and a re-education experiences. His symptoms were probably exacerbated in the recent one year."

30. In the report of June 1999, Dr Law reiterated most of what he had said in his previous report at T19, and added that Mr Nguyen's prospects of being able to return to the workforce in the two years from then were bleak. The opinion about the employment prospects as stated at T19, was repeated by Dr Law in his report of 31 August 1999 at Exhibit A1.

31. In a further report of 2 April 2001, Dr Law opined that Mr Nguyen suffered moderately severe symptoms of service-related PTSD and stated further that he regarded him to be totally and permanently incapacitated for work owing to the combined adverse affects of PTSD and pain symptoms. In his final report before the Tribunal dated 22 August 2001, Dr Law reiterated his view that Mr Nguyen was totally and permanently incapacitated for work (Exhibit A5).

evidence of dr h pope - general practitioner

32. Dr Pope was Mr Nguyen's General Practitioner. His reports before the Tribunal were as follows: a report dated 14 July 1999 at T23; a report of 12 October 1999 as Exhibit A6; and a report dated 24 August 2001 as Exhibit A4.

33. The document at T23 was a form completed by Dr Pope with regard to Mr Nguyen's permanent incapacity. He listed as permanent conditions: PTSD/Anxiety/Depression which he described as fluctuating; cervical and lumbar spondylosis which he described as worsening, and hypertension which he described as stable.

34. In his report of 12 October 1999, Dr Pope stated that he had recently checked Mr Nguyen's history against the DSM IV criteria for PTSD, and opined that he met the criteria. He added: "As such there is a significant discrepancy in the report HSA provided on 26 July 1999." Dr Pope also listed the medication which Mr Nguyen was taking, making the point that Clonidine Hydrochloride was used for anti aggression management.

35. In his most recent report dated 24 August 2001(Exhibit A4), Dr Pope again listed Mr Nguyen's current medication and summarised the range of conditions presented by Mr Nguyen in the period from 19 May 1999 to 9 February 2000 during which he had attended the practice. These conditions included:

24 May 1999 back pain

31 May 1999 facet Joint Arthritis

31 May 1999 spondylosis - cervical

31 May 1999 spondylosis - lumbosacral

10 June 1999 hypertension

14 September 1999 PTSD

12 October 1999 DSM Criteria for PTSD met

9 February 2000 Right salivary gland calcification

Dr Pope stated that he concurred with Dr Law's assessment of Mr Nguyen and regarded the GARP rating allocated by Dr Law as appropriate.

health services australia

36. There were reports of medical practitioners for Health Services Australia ("HSA"), before the Tribunal at T27 (dated 26 July 1999), at T40, (dated 12 January 2000) and a report of 13 March 2000 as Exhibit A2.

37. The Tribunal noted that Dr H Fitzgerald (T27), whose report was written on 26 July 1999, took a history from Mr Nguyen which included the information that Mr Nguyen "worked in his own business running a laundry until May of this year until it ran into financial difficulties and he decided to case (sic) operating when the landlord increased the rent."

38. Referring to Mr Nguyen's PTSD, Dr Fitzgerald opined, that he had some minor problems relating:

"chiefly to lack of financial success, he has minor sleep disturbance, and his clinical picture does not meet the diagnostic criteria for PTSD, nor is he currently disable (sic) by these minor psychological issues."

39. Dr Fitzgerald opined that Mr Nguyen had minor musculo-skeletal complaints that ruled out heavy manual work that enabled him to work full-time in lighter duties such as process work, driving or retail tasks. Dr Fitzgerald did not consider that Mr Nguyen's hypertension would prevent him from doing the above-mentioned tasks.

40. Dr G Smith prepared the report dated 12 January 2000 (T40). He too recorded that Mr Nguyen ceased his laundry business due to financial difficulties in May 1999. He opined that Mr Nguyen appeared somewhat depressed at interview, and noted that because the major issue regarding Mr Nguyen's work ability appeared to be the severity and prognosis of his psychological condition, an independent psychiatric report would be arranged. Dr Smith opined in relation to Mr Nguyen's back and neck pain that x-rays indicated mild degenerative changes of the spine. He commented that the condition seemed relatively stable, and that Mr Nguyen's blood pressure was high at the time of examination.

41. Dr Smith also reported on 13 March 2000 (Exhibit A2), that pursuant to Dr Walden's opinion, he accepted that Mr Nguyen was suffering from PTSD but agreed with Dr Walden in her opinion that he was not permanently incapacitated for work on psychiatric grounds alone, and that his symptoms were not severe enough to preclude him from his usual work.

clinical notes of dr quang

42. The Tribunal had before it the clinical notes of Dr Quang as Exhibit R4, and noted that the earliest visits recorded appeared to have been in 1990. The following entries then appeared in 1995 with a note made as follows on 11 April 1997:

"under stress = work/laundrymat operator under financial stress sleep disturb Zoloft ..."

43. The Tribunal noted that there were several other entries detailing sleep problems, certain pain and medication for hypertension.

SUBMISSIONS AND CONCLUSIONS

44. The Tribunal had to take into account all the evidence, both written and oral, the case law, and legislation to make the correct and preferable decision and decide whether Mr Nguyen qualified for invalid pension pursuant to section 37(1) of the Act. For him to qualify, the Tribunal would have to be satisfied to its reasonable satisfaction, (section 120(4) of the Act), that Mr Nguyen's degree of permanent incapacity for work was 85 percent or more.

45. The Tribunal noted it was common ground that Mr Nguyen did not satisfy section 37(3) of the Act in that he did not have a ten year period of residence in Australia. Ms Henderson submitted that was the reason the Applicant sought to rely on the exemption in section 37(5)(a) of the Act, because he would be qualified for invalid pension if he became permanently incapacitated while resident in Australia.

46. Mr McCombe submitted that the Tribunal take into account Mr Nguyen's oral evidence regarding his reasons for giving up his work. He submitted that Mr Nguyen had at all times been required to employ staff in his laundry business, because he was unable to do heavy lifting due to his back problems. He submitted that part of the reason the business failed was because it could only support one person in employment, and that the financial problems Mr Nguyen suffered, arising in part by from his high costs/expenditure, caused him further mental problems to the extent that he had to close the business, and abandon it in mid-1999.

47. Mr McCombe, relying on the opinions of Dr Law at Exhibits A1, A3 and A5, and Dr Baz, (Exhibit R3), submitted that the Applicant was unable to undertake employment. He submitted that the treating psychiatrist was the person in the best situation to make a diagnosis. He referred the Tribunal to the case of National Mutual Life Association of Australasia Ltd v Campbell (2000) 99 FCR 562, in particular to page 571 of that judgment, where the Full Court had held that the Tribunal was entitled to prefer the opinion of the treating psychiatrist. The Tribunal noted that the Court, in rejecting the submissions of the Applicant in that case, stated as follows:

"In any event this is not a case in which the Tribunal merely preferred one body of the evidence over another. The cause of the claimed incapacity was such that in the Tribunal's view the treating doctor was in a position of advantage over the forensic psychiatrists. In the Tribunal's view, insufficient weight was given to the opinion of the treating psychiatrist in a situation where effective diagnosis and assessment could only be achieved over the period of time, once the patient's trust had been gained.

It follows that we reject the submission that the Tribunal was not authorised to act in the way in which it did."

48. Ms Henderson submitted that the Respondent relied rather on the importance of the role of the treating General Practitioner, Dr Quang. She drew the Tribunal's attention to the fact that Dr Quang had been the Applicant's General Practitioner during his time in Australia in 1989/1990, and again after his return from the USA in 1995. She submitted that the Applicant had had a lengthy relationship with Dr Quang, and that it could therefore be expected that he would have disclosed all his illnesses to him, and have had confidence in Dr Quang. She submitted that Dr Quang had prescribed Zoloft for the Applicant in April 1997, for the purpose of insomnia only. She said that some of the clinical notes of Dr Quang at Exhibit R4, recorded the Applicant complaining of aches and pains, but that there was no record of deterioration of any of his conditions recorded in those notes. Neither, she submitted, were there any supporting reports with regard to either physical or psychological deterioration in regard to the Applicant.

49. Mr McCombe, referring to Dr Pope's report at Exhibit A4, reminded the Tribunal of Mr Nguyen's back problems, submitting that the Applicant suffered more than one disability. He referred also to the report of Dr Smith at Exhibit A2, and the report of Dr Baz (Exhibit R3).

50. By way of reply to apparent criticism that Mr Nguyen had attended Dr Pope and Dr Law simply to ameliorate his position with regard to the pension, Mr McCombe referred the Tribunal to Van Tran v Repatriation Commission [2001] AATA 583, where Senior Member Lewis had recorded that Mr T Loftus of the Vietnam Veterans' Association of Australia, NSW Branch Inc ("the Association") had made a Statutory Declaration in connection with the Van Tran (supra) matter, declaring that it was:

"the Association's practice to refer a large number of Australian and allied veterans to general medical practitioners and psychiatrists and that Dr Pope had taken an active interest in the illnesses of veterans since the late 1970s. Dr Law was also on their list of psychiatrists to whom they referred veterans."

51. The Tribunal was mindful of the above. It took into account the submissions regarding the weight to be given to treating versus medico-legal practitioners, and has, in coming to a decision, taken into account all the medical reports, including the contemporaneous clinical notes of Dr Quang (Exhibit R4), the reports of the treating psychiatrist Dr Law, and the opinions of the other doctors including amongst others, Dr Baz and Dr Walden.

52. Ms Henderson submitted that there had been what she referred to, as a remarkable series of events in connection with Mr Nguyen's application for the pension. She enumerated a series of events leading up to Mr Nguyen's claim for an invalidity pension, commencing with the abandonment of the laundry business in mid-1999, the commencement of a hairdressing business by Mrs Nguyen, and consultations with Dr Pope and Dr Law which followed shortly afterwards.

53. Ms Henderson submitted that Dr Quang did not attach much importance to Mr Nguyen's back and shoulder problems. She submitted further, that there was no evidence of any deterioration of that condition.

54. Ms Henderson submitted that during this period, the first report of Dr Law dated 25 May 1999, (T19/55), recorded the Applicant as having some degree of PTSD, and that his symptoms "were probably exacerbated in the recent one year".

55. Ms Henderson then referred the Tribunal to T15/47, a letter of Mr Hao Nguyen, accountant, dated 1 June 1999, in which he wrote:

"Mr Nguyen operated laundry business at 96 Bathurst St Sydney NSW 2000 since 10 October 1995.

It's high competition, lack of the client and high operating costs, so Mr Nguyen ceased operating business on 7 May 1999."

56. Ms Henderson then drew the attention of the Tribunal to T10/38, a further report of the same accountant, reporting on the fact that the wife of the Applicant commenced operating a hairdressing business on 24 May 1999. She also referred the Tribunal to a radiology report of the Applicant's cervical and lumbar spine dated 24 May 1999, in which it was found that his condition was mild to moderate. She further drew the Tribunal's attention to T13/43, a letter of Centrelink, dated 9 June 1999, granting the Applicant Parenting Payment.

57. Ms Henderson submitted that financial factors in the first half of 1999, including threatened rent increases and redevelopment of the property in which Mr Nguyen's laundry business operated, rather than ill health, were the reasons for his abandonment of the business. She emphasised that this coincided also with the Applicant's wife opening her hairdressing business.

58. Ms Henderson submitted that the Applicant was unable to nominate a date in connection with the deterioration of his health when questioned by the Tribunal. Ms Henderson also emphasised that Dr Walden, in her evidence, had told the Tribunal that the doses of medication Mr Nguyen took for his psychiatric condition were sub-therapeutic.

59. Ms Henderson also referred the Tribunal to the cases of Re Panke & Director-General of Social Services (1981) 4 ALD 179. She submitted, referring to Dr Walden's report, that the Applicant still relied on treatment, and that there was no evidence before the Tribunal to indicate that he suffered a permanent illness. To qualify pursuant to section 37 of the Act, the Applicant's illness had to exhibit permanency she submitted (Panke (supra)).

60. In coming to its decision, the Tribunal was mindful of the medical evidence and the oral evidence of the Applicant regarding his physical and psychiatric conditions. The Tribunal was mindful also that of Mr Nguyen's various conditions (musculo-skeletal, psychiatric and hypertension). The Tribunal considered that the psychiatric condition was likely to be the most serious to take into account in considering whether the Applicant was permanently impaired within the terms of the legislation, and therefore eligible for the pension for which he had applied.

61. Addressing the psychiatric condition first, the Tribunal accepted that Mr Nguyen's nightmares and insomnia appear to have been an integral part of his life since the 1970s, during which time he worked successfully both in the USA and in Australia. In coming to this decision, the Tribunal accepted Dr Walden's opinion which was as follows:

"It is likely that Mr Nguyen's probable Post Traumatic Stress Disorder is permanent given that he describes symptoms dating back more than 20 years on this occasion and there has been little change with treatment. However Mr Nguyen managed to work for most of his life with his symptoms and it appears that the reason he ceased work was because of the lack of financial profitability of his business rather than a deterioration in his health...."

62. The Tribunal was also aware that Dr G Smith, Medical Adviser to Health Services Australia, (Exhibit A2), accepted the opinion of Dr Walden, who found that the Applicant was suffering from PTSD, but found that he was not permanently incapacitated for work on psychiatric grounds alone, and that his symptoms were not severe enough to preclude him from his usual work.

63. The Tribunal noted also that Dr Law who was Mr Nguyen's treating psychiatrist, opined that he suffered moderately severe symptoms of service-related PTSD, and stated further that he regarded him to be totally and permanently incapacitated for work owing to the combined adverse affects of PTSD and pain symptoms. In his final report before the Tribunal dated 22 August 2001, Dr Law reiterated his view that Mr Nguyen was totally and permanently incapacitated for work.

64. Dr Law also opined as follows in his report of 25 May 1999, (T19):

"Mr Nguyen has been suffering from some degree of post-traumatic stress disorder, as a result of his past adverse military and a re-education experiences. His symptoms were probably exacerbated in the recent one year."

65. In his final report before the Tribunal dated 22 August 2001, Dr Law reiterated his view that Mr Nguyen was totally and permanently incapacitated for work.

66. Dr Baz also concluded that: "Mr Nguyen should be considered permanently incapacitated for work on the grounds of his psychiatric disability, and specifically of the depression associated with this."

67. Dr Pope, General Practitioner, opined with regard to Mr Nguyen's permanent incapacity that it involved one of three permanent conditions. However he described the PTSD/Anxiety/Depression as fluctuating.

68. The Tribunal was therefore able to conclude that whilst Mr Nguyen suffered a certain level of PTSD, on the balance of probabilities a permanent disorder, there was no evidence that its severity had escalated recently, or that it was this condition rather than financial problems which had caused him to abandon his shop in mid 1999.

69. As to the cervical and lumbar spine; the Tribunal was mindful from Exhibit R4, the notes of Dr Quang, that Mr Nguyen had reported aches and pains to him over the years.

70. The Tribunal noted also from the medical evidence, including the report of Dr J. Sacks (T25), with regard to radiological investigations of both the cervical and lumbar spine dated 24 May 1999, that Mr Nguyen's lumbar and cervical conditions could be considered mild to moderate. Dr Smith opined in relation to Mr Nguyen's back and neck pain that X-rays indicated mild degenerative changes of the spine.

71. At T23, a report dated 14 July 1999, Dr Pope described Mr Nguyen's cervical and lumbar spondylosis as worsening.

72. The Tribunal was mindful also of the opinion of Dr Baz noting that she opined:

"He describes right shoulder, neck and back pain. Examination is unremarkable and there are no specialist investigations available. This is probably musculo- ligamentous in origin and probably limits the physical exertions for which he is capable. ..."

73. In coming to a decision with regard to Mr Nguyen's capacity to gain employment, the Tribunal noted that Dr Fitzgerald opined that Mr Nguyen had minor musculo-skeletal complaints which ruled out heavy manual work but that he was able to work full-time in lighter duties such as process work, driving or retail tasks.

74. Having considered all the medical and psychiatric evidence, the Tribunal then moved to consider Mr Nguyen's situation with regard to employment. Mr McCombe referred the Tribunal Re Panke (supra), submitting that relying on that case, the Tribunal in assessing employability, could take into account the Applicant's age (52 years), his language skills, his training and other factors.

75. The Tribunal was also sympathetic to the fact that Mr Nguyen suffers more than one incapacity, and took into account that the sum of the incapacities might all impact on his ability to work. The Tribunal was also aware that pursuant to Panke (supra), it could take into account Mr Nguyen's age, (52 years), his language skills, training and other characteristics in assessing his ability to gain employment.

76. The Tribunal took into account in particular, the factual situation regarding the closing of the dry cleaning business which Mr Nguyen owned and operated, and was satisfied on the balance of probabilities that the business closed due to economic and financial pressures rather than to any health factors which the Applicant suffered. In coming to that decision, the Tribunal took into account evidence from the Applicant's accountant, and the history given to doctors consulted in approximately mid-1999. The Tribunal noted that there were several versions of reasons given regarding why Mr Nguyen had closed his laundry, noting that Dr Fitzgerald saw him on a date not long after the closure, and that the version given to him more likely than not reflected the actual reasons.

77. The Tribunal noted also that it was at this time that Mr Nguyen consulted Dr Pope for assistance with regard to his pension claim.

78. Ms Henderson referred to the report of Dr Baz in relation to Mr Nguyen's employability, submitting that notwithstanding his minor muscular skeletal problems, she had opined that the Applicant was not precluded from working in sedentary activities, and had in fact a history of working in garment factories. The Tribunal noted that notwithstanding, Dr Baz opined that Mr Nguyen was permanently incapacitated for work on the grounds of his psychiatric disability.

79. Ms Henderson submitted that it was not open to the Tribunal to conclude that the Applicant could only work provided his English was quite fluent. There was substantial work in the community available, she submitted, in situations where knowledge of the Vietnamese language was quite adequate for purposes of employment. Ms Henderson pointed out that Mr Nguyen had consistently been employed both in the USA and in Australia, and that his level of knowledge of English had not impeded his progress. She said that the Respondent was mindful that Mr Nguyen was 52 years old, noting however that he had background skills and a good work history. He did not therefore come within the parameters of section 37 of the Act, she submitted.

80. The Tribunal was mindful that pursuant to Panke (supra), it could take into account factors in addition to Mr Nguyen's specific health problems, and did so. The Tribunal noted that Mr Nguyen had lived with his level of PTSD, manifested by sleep disturbances and other symptoms as described by him, since the 1970s, and that he worked throughout the time both in the USA and in Australia until he made his claim for pension. The Tribunal noted also the evidence of Dr Walden that the dosage of drugs Mr Nguyen had been prescribed by Dr Law was inadequate to treat a major depressive disorder, and that it was only recently that he had been receiving a therapeutic dose. The Tribunal also took into account the fact that the back condition was relatively minor, acknowledging heavy physical labour would be excluded, and noting also that the hypertension was controlled.

81. The Tribunal accepted the submissions of the Respondent with regard to employment possibilities, noting that many migrants work in situations where a superior knowledge of English is not necessarily required.

82. Accordingly, the Tribunal was not satisfied within the terms of the legislation that Mr Nguyen was permanently impaired to the level of 85 percent to qualify for pension pursuant to the Act. He cannot therefore be awarded the pension as claimed.

decision

83. The Administrative Appeals Tribunal affirms the decision under review of 2 August 1999, being a decision of the Repatriation Commission, as affirmed by the Delegate of the Repatriation Commission of 21 March 2000, holding that the Mr Cac Van Nguyen was not permanently incapacitated for work within the meaning of section 37 of the Veterans' Entitlements Act 1986.

I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, and Dr P Lynch, Member

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

Associate

Date/s of Hearing 28 August 2001

Date of Decision 17 January 2002

Advocate for the Applicant Mr T McCombe

Counsel for the Respondent Ms R Henderson

Solicitor for the Respondent Ms S Kirby DVA Canberra