Rendell v Repatriation Commission

REASONS FOR JUDGMENT Introduction 1 Gary Alan Rendell, a Vietnam veteran, appeals against a decision of the Administrative Appeals Tribunal refusing to increase the rate of his Service Pension from the General to the Special Rate. The appeal raises questions about the construction of s 24 of the Veterans' Entitlements Act 1986 which lays down the conditions for the payment of Service Pensions at the Special Rate. Factual Background 2 Gary Alan Rendell was born on 25 August 1945. He left school at age 16 having completed the second year of his high school education. On 4 February 1964 he enlisted in the Australian Army. He served in the army until February 1970 when he was discharged. During that time he saw operational service in Sarawak, from 25 April 1966 to 20 August 1966, and in Vietnam from 21 May 1968 to 21 May 1969. Following his discharge he held a variety of jobs in Queensland and in Western Australia from 1973 to 1980. He worked variously at an industrial plant and as a laboratory tester and plant manager at Pioneer Concrete in Queensland and subsequently at Pioneer Concrete in Collie in Western Australia. From 1986 to 1988, he worked as a cleaner in a shopping centre at Armadale and from 1988 to 1990 operated a sub-franchise for Crystal Soft Drinks. Mr Rendell ceased fulltime work in June 1990 citing as the reasons for his inability to continue working his "sore neck, shoulders and knees, blocked ears and prickling back". Between February and June 1991 he worked part time as a paving contractor with N & A Allpike, but found even that employment too strenuous. 3 It appears from a summary of events attached to the s 37 statement and documents submitted to the Administrative Appeals Tribunal, that Mr Rendell was in receipt of a Service Pension at fifty per cent of the General Rate from 8 August 1984. This was increased to eighty per cent of the General Rate from 16 January 1985. The record is not clear but it appears that the conditions in respect of which the pension was payable included ischaemic heart disease. On 2 August 1990, Mr Rendell made a further application for a Service Pension on the basis of permanent incapacity derived from additional conditions. The conditions he cited were as follows: · Anxiety - commenced 1970 · Back rash - commenced 1970 · Blocked ears and dizziness - commenced December 1989 · Stiff neck and jaw muscles - commenced 1989 · Sore knees and joints He submitted that his conditions caused him to suffer loss of balance, pins and needles on his back during hot weather and dizziness making it hard for him to walk and turn his head. He concurrently applied to increase the rate of pension payable to him. 4 On 7 September 1990, a delegate of the Repatriation Commission determined that Mr Rendell was permanently incapacitated for Service Pension purposes as defined by the Veterans' Entitlements Act 1986 s 39(6)(1). This assessment appears to have been based on a combination of the ischaemic heart disease and chronic anxiety state suffered by Mr Rendell. A further determination was made on 30 January 1991 by a delegate of the Repatriation Commission that his pension be payable at ninety per cent of the General Rate with effect from 13 August 1990. Ischaemic heart disease was again determined to be a war-caused disease/injury within the meaning of s 9 of the Veterans' Entitlements Act with effect from 13 August 1990. Claims for pension in respect of the skin conditions, cholinergic urticaria and keratosis pilaris, were refused. These were determined not to be war-caused. 5 On 6 August 199, a delegate of the Commission continued the Service Pension on the same basis as the previous determination. An application for an increase in the disability pension beyond ninety per cent of the General Rate was lodged on 8 June 1992. A delegate of the Commission however determined that the payments continue at their then current rate of ninety per cent of the General Rate. This was again on the basis of his ischaemic heart disease and his chronic anxiety state. 6 On 30 March 1994, the pension payable to Mr Rendell was increased to one hundred per cent of the General Rate with effect from 11 November 1993. This was based, in part, on a report from a consultant psychiatrist, Dr Kay, received on 10 November 1993 which was treated as an informal application for an increase. In that report, which was dated 18 October 1993, Dr Kay diagnosed Mr Rendell as suffering from post traumatic stress disorder arising solely as a consequence of his military service in Vietnam. He was also said to suffer from depressive symptoms and excessive alcohol consumption. The disabilities in respect of which pension was payable after the determination were: · Right sided pain · Malaria · Ischaemic heart disease · Chronic anxiety state 7 An application for a further increase above one hundred per cent of the General Rate was received by the Commission on 24 July 1997. The only higher rates available were the Intermediate Rate, the Special Rate, or the Extensive Disablement Adjustment Rate. This application was refused by a delegate of the Commission on 8 August 1997. 8 A report from Dr Kay dated 13 August 1997 indicated continuing support for the claim. He said, inter alia: "I believe that the probable cause of his fatigue and weakness is as a result of his severe Post-Traumatic Stress Disorder and chronic Alcohol Abuse. As you are aware, anxiety disorders are frequently characterised by weakness [neurasthenia being a term that was coined to describe this particular condition], likewise, alcohol abuse is associated with myopathies. Irrespective of that, I believe the degree of weakness he described in no significant way incapacitates him for all forms of work. I have little doubt that he suffered from significant PTSD when he stopped work and I take the view that he stopped work because of an acute illness of unknown cause, but the sole reason he has not returned to work is his PTSD." 9 On 25 November 1998 a further application for an increased rate was lodged asserting, in addition to previously accepted disabilities, stress related symptoms, chronic diarrhoea and rash. These were diagnosed as post traumatic stress disorder (PTSD) , irritable bowel syndrome, cholinergic urticaris and kerotosis pilaris. On 14 April 1999 a delegate of the Commission accepted the claim for post-traumatic stress disorder and irritable bowel syndrome. The claim for cholinergic urticaris and kerotosis pilaris was refused. The disability pension was continued at one hundred per cent of the General Rate with effect from 25 August 1998. The application for an increase in the rate was refused. 10 Mr Rendell applied on 17 May 1999 and 14 July 1999 for review of the Commission's decisions by the Veterans' Review Board. Before the matter was decided by the Board he sought a s 31 review based in part upon a report by Dr Kay dated 31 August 1999 in which Dr Kay wrote: "…I am of the view that it is his psychiatric factors alone which can and do prevent him from working. I have seen patients with very substantial physical disability who have been able to work despite their disability, but with psychiatric disorders, the situation is quite different. If a disorder affects memory, concentration, mood, capacity to interact with others or a sense of self-worth, the effect can be profound." The relevant delegate declined to intervene under s 31. 11 On 7 April 2000, the Veterans' Review Board published its decision in the following terms: ". consent pursuant to section 155(1) of the Veterans' Entitlements Act 1986 to the withdrawal from review the disabilities of cholinergic urticaria and keratosis pilaris . affirm the assessment of pension at 100% of the General Rate." On 14 July 2000, Mr Rendell applied to the Administrative Appeals Tribunal for review of the Veterans' Review Board decision. On 12 February 2001, the Administrative Appeals Tribunal affirmed the decision under review and Mr Rendell continued to be paid pension at one hundred per cent of the General Rate. 12 On 9 March 2001, Mr Rendell filed an application in this Court by way of appeal, in its original jurisdiction, against the decision of the Administrative Appeals Tribunal. Before turning to the decision of the Tribunal it is necessary to set out some elements of the relevant statutory framework. The Statutory Framework 13 The liability of the Commonwealth to pay pensions for defence caused injury or disease is established by s 70 of the Veterans' Entitlements Act 1986. The Commission is given the responsibility under s 21A of the Act to determine the degree of incapacity of veterans from war-caused injury or war-caused disease or both, according to the provisions of the approved Guides of Assessment of Rates of Veterans Pensions. The degree of incapacity is determined as ten per cent or a multiple of ten per cent, but not exceeding one hundred per cent. Relevantly for present purposes the criteria for the grant of the Special Rate of pension are set out in s 24. That section provides: "24(1) This section applies to a veteran if: (aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and (aab) the veteran had not yet turned 65 when the claim or application was made; and (a) either: (i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or (ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and (b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and (c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and (d) section 25 does not apply to the veteran. (2) For the purpose of paragraph (1)(c): (a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if: (i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or (ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and (b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking." The Tribunal's Decision 14 The Tribunal referred first to the applicant's evidence and his work history between 1973 to 1990 which it described as "largely 'hands on' type employments" which did include some managerial positions. It found that his last full time work was 1998/1990 when he was self-employed conducting a soft drink franchise. The accepted documentary evidence indicated that he ceased full time work in June 1990. Although he applied for Service Pension in 1990 on the grounds of permanent incapacity and stated he was unable to work because of the number of conditions, the only condition that was accepted as war-caused was his anxiety. Reference was made to a medical report by Mr Rendell's local medical officer, Dr Ng, that a number of his non specific complaints could result from Lyme disease. This diagnosis had never been confirmed and subsequent medical opinion indicated that he did not have that disease. 15 During his oral evidence, Mr Rendell was asked why he ceased full time self-employed work delivering soft drinks in 1990. The Tribunal observed that his responses varied from having allowed the granting of credit to get out of hand with resultant bad debts, getting upset with the bad debt customers and feeling despondent as a result, lack of interest in the job, lack of experience in running a business, his irritable nature and his aches and pains. The Tribunal observed that Mr Rendell said in fact that there was a whole lot of reasons why he gave up work and he couldn't pinpoint just one. Reference was made to his evidence about his alcohol use and abuse. He said that when he was working full time up to 1990 he did not drink during the day but on most evenings would have two or three cans of beer. Friday night he would let his hair down and would regularly consume about 15 mid strength stubbies. More recently he had a regular arrangement of meeting friends on Monday afternoons when he would drink about six stubbies or cans. On other evenings of the week he might have several beers if he were playing pennant bowls. Mr Rendell told the Tribunal that his main problem now was the aches and pains and especially the cramping pain for which he had been prescribed medication which did help to alleviate it. He also had a right rotator cuff problem which was not service related. 16 Mr Rendell was questioned at some length in cross-examination before the Tribunal concerning the degree to which his irritability was a concern. He made it clear that he got on well with his ex-army colleagues. He did acknowledge that he got angry with some of his defaulting customers in 1990 when he had the soft drink business. Sometimes he became irritated by one or two members of the bowling club with whom he had a difference of opinion. He was very conscious of the control he needed to maintain over his emotions. 17 Asked by the Tribunal to clarify how he saw his present physical problems, Mr Rendell told them he still had some neck stiffness, some cramping pains in the stomach, slightly increased hearing difficulty, irregularity in vision and some sweatiness. The Tribunal then said: "When asked why he felt he presently could not undertake remunerative work, the applicant was unsure of the reason but in the end concluded that he was worried whether he would be able to handle the job. His concern was about his ability to hold a job down and was not related to his skills. He felt confident about adapting to most things if he set his mind to it and also believed he was trainable should that be necessary." 18 The Tribunal then referred to the medical evidence. Dr Eaton reported that Mr Rendell had stopped drinking alcohol recently and that he was willing to work if he could get rid of the soreness in his muscles. Dr Ng reported that he had apparently been bitten by an insect in December 1989. A Dr Scopa had diagnosed Lyme disease resulting from the bite, but the final diagnosis was uncertain. In August 1991, Dr Ng examined Mr Rendell and reported he was suffering from paraesthesia generally, joint pains in the neck, back and throat and tinnitus. 19 Dr Zilko, an immunologist, gave a report on 19 January 1991 following his examination. The Tribunal set out the text of the report in which he was described as a fit looking man who was well muscled and tanned. There was nothing to suggest that he had inflammatory problems affecting his joints or muscles. Dr Zilko suspected the pain had a neuropathic basis and felt that psychological factors might be contributing to it. The Tribunal also referred to Dr Kay's report of 18 October 1993 diagnosing PTSD and offering the opinion that Mr Rendell suffered from depressive symptoms and excessive alcohol consumption. The Tribunal noted that Mr Rendell intermittently consulted Dr Kay from 1993 onwards. It referred to his report of 13 August 1997 in which Dr Kay stated his belief that the probable cause of his fatigue and weakness was a severe PTSD and chronic alcohol abuse. In that report Dr Kay offered the opinion that Mr Rendell had stopped work because of an acute illness of unknown cause. However the sole reason he had not returned to work was his post-traumatic stress disorder. Dr Daly's report of 26 July 1997 was also cited. There it was said that Mr Rendell's cramps were a somatic manifestation of his chronic PTSD and although they were not a prime factor causing him to cease work they were more properly considered as part of his chronic PTSD. 20 At the hearing Dr Kay gave oral evidence and as the Tribunal saw it, emphasised his opinion that a number of Mr Rendell's "physical" conditions were in fact manifestations of his accepted disability of PTSD and should not be regarded as separate from it. This was a view he had expressed in earlier reports. Reports by Dr Zilko and Dr Daly were also seen as supportive of that assessment. In the latter stages of his oral evidence and following questions during the hearing, Dr Kay advised that he had decided to withdraw his 1997 opinion that the probable cause of Mr Rendell's fatigue and weakness was a result of his severe PTSD and chronic alcohol abuse. He now believed, as a result of further consideration and in view of the results of an electromyography study which showed no evidence of resultant myopathy, that his previously stated opinion concerning the cause of Mr Rendell's fatigue being in part due to chronic alcohol abuse was incorrect. Despite that change in opinion he reaffirmed that he would still diagnose Mr Rendell as having an alcohol abuse syndrome. He was strongly of the view that he drank at night or at the end of the day and not during the day. On this basis his alcohol habit would not affect his ability to carry out remunerative work. In referring to so called "somatic symptoms" Dr Kay's oral evidence as set out by the Tribunal was that every Vietnam veteran had physical symptoms and simply didn't bother diagnosing it or putting it all down. He said they all had a skin rash that came and went and had seen various dermatologists. Most of them suffered from headaches. These became worse in times of stress. He said they had a typical sort of generalised anxiety including symptoms of sweatiness and racing heart beat. They all had gastrointestinal symptoms. If there were lower gastrointestinal symptoms then they would fulfil the criteria for irritable bowel syndrome. They all had back pain. In response to questions by the Tribunal it was said Dr Kay amended his description "all" in his statement to mean "all of the Vietnam veterans that see psychiatrists". 21 Dr Kay gave evidence about Mr Rendell's irritability problem. He said it did affect his employability and was actually a cause of him not being able to work. He said that Mr Rendell was disliked among the community of Vietnam veterans. The Tribunal noted that his evidence in this respect differed markedly from Mr Rendell's own evidence about his irritability and social relationships with his ex-army colleagues. 22 The issue before the Tribunal as identified by the Tribunal was whether Mr Rendell was entitled to pension at the Special Rate pursuant to s 24 of the Act rather than at one hundred per cent of the General Rate which he was then receiving. A basic question underlying that issue was whether some of Mr Rendell's conditions other than those accepted as war-caused were in fact separate conditions or were manifestations of the accepted PTSD or chronic anxiety state. The other question was whether the accepted war-caused conditions suffered by the applicant were of such a nature as of themselves to have caused him to cease work and to continue to prevent him from undertaking remunerative work pursuant to s 24 of the Act. 23 The Tribunal then turned to its findings. It held that the condition prescribed by s 24(1)(b) required the veteran to be "totally and permanently incapacitated" in the sense that the veteran's incapacity from war-caused injury or war-caused disease or both was of such a nature as of itself alone to render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week. The Tribunal found that the medical evidence before it supported the proposition that Mr Rendell was incapable of undertaking remunerative work. It referred to Dr Kay's opinion that he was incapable of working because of his accepted PTSD/chronic anxiety state. Dr Kay had said that Mr Rendell's other complaints were not separate but were somatic manifestations of his accepted anxiety disorders. The Commission's contention was that these additional conditions were sequelae of the accepted anxiety disorders and should not be taken into account as if they were accepted disabilities by the Tribunal. They would first have to be separately claimed by Mr Rendell and accepted by the Commission as war-caused. The Commission did, however concede that if, based on evidence, the Tribunal were to be satisfied that these sequelae could in fact be viewed as clinical features or symptoms of the accepted anxiety disorders then they could be taken into account in assessing the appropriate rate of pension. 24 The Tribunal found that the sequelae of the back rash, stiffness, sore joints, stomach cramps and dizziness were somatic features or symptoms of Mr Rendell's accepted disabilities of PTSD/chronic anxiety state. This finding, however, did not result in what it called "the alone test" having been met. There was the question of Mr Rendell's alcohol abuse. In this respect the Tribunal agreed with the Commission's contention that the alcohol abuse condition must be separately claimed for as a war-caused disability. It found that it was a separate disability which it did not accept as war-caused. The effect of the alcohol abuse on Mr Rendell's ability to undertake remunerative work was unclear. In the event, the Tribunal found that his tendency to overindulge in alcohol as portrayed in his evidence and also that of Dr Kay was an appropriately significant factor in his employability and his ability to work. 25 In relation to his irritability, the Tribunal was concerned about the discrepancy between his evidence and that of his own witness, Dr Kay. It found the oral evidence of Mr Rendell following from "detailed and purposeful questioning by the Tribunal" to be vastly different from the opinion of Dr Kay in his oral evidence. The Tribunal was convinced that this difference was not a matter of Mr Rendell "painting a preferable picture" in his oral evidence. The Tribunal therefore found that the irritability factor was not one which could be classed as a major inhibitor to Mr Rendell successfully undertaking all remunerative work. Following on from that and despite some opinion to the contrary by Dr Kay, the Tribunal found it was not so much the irritability factor which caused Mr Rendell to cease full time work in 1990 but more his mismanagement of the business in which, as he admitted, he was somewhat out of his depth. 26 The Tribunal was satisfied that Mr Rendell met the requirements of s 24(1)(a) and (d). It was possible that he might satisfy the requirements of s 24(1)(b). However in relation to s 24(1)(c) the Tribunal found from the evidence that it was not Mr Rendell's accepted war-caused disabilities which alone prevented him from continuing or resuming remunerative work. Other significant factors were also involved, namely his own inadequate managerial experience/skill, dissatisfaction with and lack of interest in the type of work involved and some alcohol abuse difficulties. That latter condition was not one that was accepted at that time as war-caused. The Tribunal was therefore not satisfied that Mr Rendell was suffering a loss of salary, wages or earnings that he would not be suffering but for his accepted disabilities alone. Grounds of Appeal 27 The grounds of appeal are as set out in a substituted notice of appeal accepted at the hearing on 21 November 2001. They are as follows: