Tran and Repatriation Commission [2010] AATA 91 (8 February 2010)

Last Updated: 9 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 91

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/1504

VETERANS’ APPEALS DIVISION )

Re Phuoc Van TRAN

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member, and

Dr JD Campbell, Member.

Date 8 February 2010

Place Sydney

Decision The decision under review set aside.

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

Ms N Isenberg,
Senior Member

CATCHWORDS

VETERANS ENTITLEMENTS- invalidity service pension- permanently incapacitated for work- Post Traumatic Stress Disorder- Lumbar Spondylosis- injury- Guide to the Assessment of Rates of Veterans’ Pensions- psychiatric condition.

RELEVANT ACTS

Veterans Entitlements Act 1986 (Cth) ss 7A, 37.

Veterans Entitlements (Invalidity Service Pension Permanent Incapacity for Work) Determination 1999.

REASONS FOR DECISION

8 February 2010

Ms N Isenberg, Senior Member, Dr JD Campbell, Member

BACKGROUND

1. Mr Tran was born on 22 May 1955 and served in the naval forces of the Republic of Vietnam from March 1972 to April 1975. He is a veteran, for the purposes of the Veterans Entitlements Act 1986 (Cth) (the Act) and rendered qualifying service as defined in section 7A the Act.
2. Mr Tran claimed invalidity service pension on the basis that he is permanently incapacitated for work by his war-caused Post Traumatic Stress Disorder (PTSD) and lumbar spondylosis. On 5 September 2007 that application was refused by the Repatriation Commission on the basis that Mr Tran is not permanently incapacitated for work. On 28 November 2007, a Senior Delegate of the Repatriation Commission reviewed and affirmed this decision.

LEGISLATIVE CONTEXT

3. Section 37 of the Act sets out the requirements for eligibility for invalidity service pension. It provides as follows:

             (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 permanently incapacitated for work in accordance with a determination under section 37AA.

Section 37AA provides that the Commission must, by written determination, specify the circumstances in which persons are permanently incapacitated for work for the purposes of paragraph 37(1)(c). The relevant determination is the Veterans Entitlements (Invalidity Service Pension Permanent Incapacity for Work) Determination 1999.

Paragraph 5 provides that a person is permanently incapacitated for work if:
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

4. The Respondent conceded that Mr Tran has a combined impairment rating of 40 or more under the Guide to the Assessment of Rates of Veterans’ Pensions (GARP), on the basis of his Lumbar Spondylosis and PTSD. The remaining issue therefore was whether, solely because of his impairment, he is permanently unable to do work for periods adding up to more than eight hours per week.
5. Initially, the Applicants case was that he had ceased work because of his back condition and, as such, majority of the evidence was focussed on this, although there was extensive evidence about his psychiatric condition. During the course of submissions the emphasis of the Applicants case shifted to the debilitating nature of his psychiatric condition, although no psychiatric evidence had been called by either party. Accordingly, the Tribunal granted leave for the case to be re-opened and for consultant psychiatrists to give evidence on behalf of both parties.

THE EVIDENCE

6. Mr Tran, and his wife, Mrs Chau Thi Tran, both gave evidence.
7. Mr Tran said, in relation to his back pain that it travels up his whole back from the ‘belt line’. To assist with the pain he receives acupuncture, ‘thermal-electric treatment’, and regularly goes to a heated pool. These treatments provide temporary relief for a day or two. He also takes medication, which provides relief for about 3-4 hours, gets ‘hydro-acupuncture’ injections, and receives nightly massages from his wife before he takes his sleeping tablets.
8. When Mr Tran first arrived in Australia in 1982 he initially worked as a cleaner. He then worked as a driver and as a cleaner in a factory. He bought a semi-trailer and for about 10 years worked long hours delivering containers. He stopped work because of back pain, largely due to the truck’s vibrations. Mr Tran gave evidence that he stopped work in August 2006 because of back pain.
9. Mr Tran no longer drives because of the strain on his back and the medication he takes would make driving dangerous. He spends his day lying flat on the floor or sitting in a chair watching television but he is unable to sit in the one spot for long. Mr Tran’s household contribution consists of helping his wife peel the evening vegetables.
10. Mr Tran sometimes waters the vegetable garden. Mrs Tran‘s evidence was to the effect that the garden is about 24 sqm and that she is the only one who tends it.
11. Mr Tran was asked to comment on Dr Chase’s observations in his report of 10 July 2008 that Mr Tran’s hands were calloused. Mr Tran said that had occurred because he must use his hands to steady himself and to push himself up into the standing position. Mrs Tran has not seen her husband do any manual work in the last year or so and she also referred to her husband taking the weight on his hands when he sits down, or to stop himself from falling.
12. Mr Tran said he could not work as a cleaner because of the lifting and bending that work entails, but that he could return to work if not for his back condition.
13. Both Mr and Mrs Tran gave evidence of his moodiness that has affected his relationship with his children. Mrs Tran said he shouts at her and that the children are scared of him.
14. In 2006 he was also having problems sleeping because of dreams and, he was referred to Dr Law, consultant psychiatrist, who he continues to see every 2-3 months.

MEDICAL EVIDENCE

15. A short report dated 5 January 2009 was provided by Dr Tram Anh Bui rehabilitation specialist who had been treating Mr Tran for chronic low back pain since September 2007. He wrote that Mr Tran’s L3/4 facet joint had been injected with only partial relief, and that physiotherapy had provided minimal improvement. Mr Tran was prescribed Lyrica and Voltaren and no improvement was expected.
16. Dr S.K. Law is Mr Tran’s treating psychiatrist. He provided a report to Mr Tran’s General Practitioner, Dr Pope on 15 June 2006. He considered Mr Tran to suffer from a moderate degree of PTSD. He advised on relaxation techniques and prescribed Deptran. Dr Law reported that Mr Tran suffered from pain in the back and could not do heavy manual jobs. In a later report, of 6 March 2007 he wrote that he considered Mr Tran to have ‘probably remained unable to return to open employment, as he still suffers from the adverse effects of various [sic] PTSD and pain symptoms.’
17. Dr Kathryn Loveric, consultant psychiatrist provided a report dated 20 April 2007. There she observed that Mr Tran had been able to work until his back pain prevented him from doing so. She did not think he could sustain employment because he was so socially isolated. She thought his condition was worsening, noting in particular his chronically disturbed sleep. She doubted he could resume full time work. She reported that he had been able to work with his psychiatric condition for a number of years and that the condition did not prevent him from continuing his position as a truck driver.
    
18. Dr Anthony Dinnen, consultant psychiatrist provided a report dated 18 June 2009 and a supplementary report dated 17 July 2009.
19. Dr Dinnen took a history from Mr Tran of his inability to sleep and distressing memories of when he had served in the naval forces, including seeing dead friends. Mr Tran told Dr Dinnen that he could not work even if there was no problem with his back. Dr Dinnen observed that Mr Tran had ceased work because of his back but noted that his current mental state alone would cause major problems in the workplace.
20. Dr Dinnen was of the view Mr Tran’s major incapacity was as a result of his chronic orthopaedic problems. He thought this was compounded by his PTSD. He considered Mr Tran’s psychiatric illness would not, on its own account, prevent Mr Tran from working but would limit his efficiency in the workplace. In his evidence he explained this to mean that his memory and concentration were affected and because of anxiety and depression he would not have the ability to be fully efficient. He would have trouble with tasks, be unreliable, and unenthusiastic such as to cause concerns to an employer.
21. In his evidence Dr Dinnen said he believed Mr Tran’s psychiatric complaints to be genuine. He also thought he was genuine about his back problem, and indeed Mr Tran told Dr Dinnen that that was his major complaint. Dr Dinnen observed that Mr Tran had seen his psychiatrist, Dr Law three times before he had ceased work. He thought there was ‘some interaction’ between his psychiatric condition and his back condition, particularly that Mr Tran’s back condition aggravated his feeling of anxiety and depression. He was of the view that, by 2006, on the basis of the treatment provided by Dr Law, that the condition had been present for some time and was likely to be permanent in that it was unlikely to improve with or without treatment.
22. As to Dr Chase’s view that Mr Tran had ‘functional overlay’, Dr Dinnen was of the opinion that there was no evidence of that.
23. Dr Robert Lewin, consultant psychiatrist provided a report dated 18 August 2009. Dr Lewin reported that Mr Tran had described distressing imagery and disturbed sleep on an intermittent basis over the entire period since the early 1970s. These symptoms had become more prominent in the last few years, particularly in the context of retirement and concern about his deteriorating physical health.
24. Dr Lewin was of the view that Mr Tran had demonstrated some ‘abnormal illness behaviour’. Mr Tran’s mild chronic PTSD had not interfered with his work despite him having ongoing symptoms for three decades. The impairment to functioning occurred after his retirement. The condition was considered now to be permanent.
25. In his evidence Dr Lewin said that on examination Mr Tran had played down his psychiatric distress and described his bodily complaints. He thought there was a degree of somatisation, which he regarded as common. This did not equate with exaggeration of his condition. Dr Lewin said he would have expected a settling of Mr Tran’s PTSD symptoms as the time elapsed since the stressors.
26. In cross-examination Dr Lewin said that the clinical picture was that Mr Tran’s psychiatric condition had worsened when he had time on his hands, although he conceded there were psychiatric symptoms, such as nightmares, for many years before he stopped work.
27. Dr Lewin accepted that Mr Tran may have had a chronic pain condition and acknowledged that Mr Tran was taking strong pain medication. He also agreed that the doctors treating Mr Tran before he commenced using strong painkillers were in a better position to assess his back condition.
28. He thought that Mr Tran’s psychiatric condition on its own would not prevent him from working. However, he said that Mr Tran may have played down his emotional distress and may be expressing that distress through somatisation of physical symptoms. Dr Lewin said this is not uncommon.
29. In relation to Mr Tran’s overall ability to work, Dr Lewin said he would defer to the occupational physician. As to Dr Chase suspecting Mr Tran was doing manual work because of callouses he had observed on his hands, Dr Lewin said somatic symptoms do not prevent work.
30. On 12 November 2007 Dr Margaret Gibson, occupational physician, reported that ‘...his physical disability is moderately severe at present (but) I would not consider the degree of disability to be permanent as with standard treatments...his symptoms should improve...this alone would not prevent him from working for periods adding up to more than eight hours per week, were an appropriate role identified.’ Dr Gibson reported that ‘with appropriate treatment further improvement is possible, particularly once the psychological issues are comprehensively addressed, as there seems to be psychological overlay which is affecting his pain perception, and thus, his activity tolerance.’
    
31. She identified restrictions on lifting and repetitive work with no lifting over 7kg, or repetitive lifting of over 5kg, no twisting, bending, stooping, standing, walking for more than 30 minutes at a stretch.
32. On 10 July 2008, Dr Robin Chase, occupational physician, reported that whether Mr Tran can work ‘is unclear because he is reporting disability and distress that is disproportionate. If one accepted his history and examination without question one would have to say that he is not capable of working in any capacity. However, this is belied by the state of his hands which indicates that he is still engaging in quite substantial manual labour. It is very difficult to tease out these issues in the face of voluntary restricted range of movement, self reported symptoms and undoubted cultural factors in the perception or expression of pain.’
33. On examination Dr Chase found significant discrepancies between Mr Tran’s reported pain and the expected results on objective testing and observation. He did not dispute that Mr Tran experiences pain, only that it was overstated. In his report he referred to ‘cultural factors in the perception or expression of pain.’ He considered Mr Tran’s ‘psychiatric status’ to be a complicating factor, noting that depression and anxiety can produce a very substantial risk factor for the development of chronic pain syndrome. His pain behaviour could be reinforced by the claim process and this could be ‘conscious, unconscious, [sic] or both.’ He did not indicate which, if any applied to Mr Tran. On imaging alone, Dr Chase considered Mr Tran to have residual work capacity.
34. He had also observed that Mr Tran had ingrained dirt in his hands which he thought was consistent with digging in dirt or doing some degree of manual labour; there was far more evidence of use of the hands than a man who did minimal physical activity. He was unsure if the ingrained dirt was only on Mr Tran’s thumb, but if that were so, he did not think it likely to have occurred as a result of standard vegetable peeling. He was clear that the explanation given by Mr Tran in his evidence about using his hands to take his body weight would not have caused the callusing and minor trauma he observed (especially on the right hand), nor the ingrained dirt. At the hearing he again examined Mr Tran’s hands and found them to now show no signs of skin thickening, minor trauma or dirt.
35. He said that if Mr Tran had a psychiatric condition that caused abnormal pain behaviour he would not have been able to undertake manual labour causing the kinds of calluses he had observed because he would be extremely disabled all of the time.
36. As to Mr Tran’s psychiatric condition, Dr Chase, although agreeing that Mr Tran would have major difficulties at work, did not agree with the view of Dr Law who had written in his GARP assessment, that Mr Tran was unable to work because of adverse affects of differing PTSD symptoms. He acknowledged that while Mr Tran would have major difficulties at work, it was noteworthy that it was only in the last two years that Mr Tran had been unable to work, allegedly because of PTSD or his back pain, or both. It was for that reason that he was not confident to say that he is completely unfit to work because he had some reservations as to how genuinely disabled he is.
37. In cross-examination Dr Chase conceded that he had proceeded on the basis that he did not think Mr Tran’s back problems had occurred as a result of his navy service which he referred to as ‘irrelevant’ to his back pain.
38. Dr Mark Burns, occupational physician provided a report dated 28 July 2008. He concluded that it was a mixture of Mr Tran’s psychological condition and his lumbar spondylosis which would preclude him from working more than eight hours per week. He considered he was unable to return to any occupation that required physical activity. He thought the back condition was only being properly treated since Mr Tran had been seeing Dr Bui. He was optimistic that the condition may improve with further management.

CONSIDERATION

39. The Tribunal accepts Mr Tran’s evidence that he ceased working as a truck driver in 2006 because of back pain. From the clinical notes of his General Practitioner, Dr Pope, it appears he was consulting the doctor about his back for at least a year prior to the cessation of his employment. While there was also some mention of occasional neck pain there was no evidence that the neck pain is an incapacitating factor in his ability to work. Dr Pope’s clinical notes make very little mention of neck pain, and the consultations are substantially in relation to back pain.
40. Mr Tran’s evidence was that he would eagerly return to work. He identified his back as his major problem and he has received treatment from both Dr Pope and Dr Bui, without significant improvement. Dr Gibson recorded that the CT scan of the lumbar spine which was taken on 27 July 2007, disclosed right invertebral disc herniation, mildly compressing the thecal sac on the right, mild diffuse disc bulge at L5/S1, and there was mild to moderate facet joint arthropathy, worse at L3/4 and L4/5. We accept that, on the basis the radiological findings, his back condition would have some impact upon Mr Tran’s ability to work.
41. However, there was some evidence that Mr Tran may have been overstating his back condition, for example, his pain exceeded that which might have been expected from the imaging. In particular, Dr Chase had observed Mr Tran at examination to have callused hands with a degree of ingrained dirt evident of manual labour, which was inconsistent with the claimed back symptoms. In his evidence Dr Chase was unclear of the extent of the dirt and callusing, and none was observable at the time of hearing. There was some suggestion that Mr Tran may have worked in the family’s vegetable garden, contrary to his evidence. We observe that Mrs Tran said she is the one who tends the garden, and in any event the garden is relatively small. While Mr Tran’s explanation was not altogether convincing, even if he were capable of some work in the garden, this would not equate, on the available evidence, to a capacity to work for eight hours per week. We also observe that the restrictions identified by Dr Gibson would leave no appropriate work available for Mr Tran because he has no training other than truck driving, and his previous roles were essentially unskilled.
42. Dr Chase accepted that depression and anxiety can produce a very substantial risk factor for the development of chronic pain syndrome. Dr Lewin thought Mr Tran may be expressing his emotional distress through somatisation of physical symptoms. Dr Gibson considered Mr Tran had psychological overlay which was affecting his pain perception, and thus, his activity tolerance. Dr Dinnen thought there was ‘some interaction’ between his psychiatric condition and his back condition, that is, he thought the back condition aggravated Mr Tran’s feeling of anxiety and depression.
43. We observe that Mr Tran had consulted a psychiatrist, Dr Law, three times before he ceased work. Dr Law considered Mr Tran unable to work because of both PTSD and pain, presumably in relation to his back, although in his first report dated 15 June 2006 he wrote that he considered Mr Tran was unable to work only because of the ‘adverse affects of the PTSD symptoms: broken sleep, spells of depression, dizzy spells, headache, forgetfulness, bad dreams and depression.’ Dr Loveric considered Mr Tran unable to work because of his psychological condition, especially noting his chronic sleep disturbance. She understood that his psychological symptoms had worsened since he ceased work; she discussed his inability to go out and his paranoid thinking. Dr Lewin, was of the view that Mr Tran’s psychiatric symptoms had become more prominent in recent years, and linked this to his concern about his deteriorating physical health.
44. Taking the medical evidence as a whole, we accept that there is an interaction between Mr Tran’s back condition and his psychiatric condition. This observation was also supported by the Respondent’s experts, Dr Chase and Dr Lewin. While neither condition on its own might prevent Mr Tran from working, we find that together, his back condition and his psychiatric condition with its effect on his concentration and paranoid beliefs, would prevent him from working.
45. On balance, therefore, we conclude that Mr Tran is permanently unable to do work for periods adding up to more than eight hours per week. He therefore satisfies the requirements in paragraph 5 of the Veterans’ Entitlements (Invalidity Service Pension – Permanent Incapacity for Work) Determination 1999, and, it follows, section 37 of the Act.

DECISION

46. The Administrative Appeals Tribunal sets aside the decision of the Respondent.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr JD Campbell, Member

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

Ms B Dhanasar, Associate.

Date/s of Hearing: 19 February 2009

Resumed 7 December 2009

Date of Decision: 8 February 2010

Appearance for the Applicant: Ms E. Wood

Appearance for the Respondent Mr N. Bunn