Altham and Defence Force Retirement and Death Benefits Authority

[2004] AATA 573

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 573

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/499

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GEOFFREY HOWARD ALTHAM

Applicant

And DEFENCE FORCE RETIREMENT & DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Deputy President Don Muller
Assoc Professor J.B. Morley, RFD, Member

Date4 June 2004  

PlaceBrisbane

Decision The decision under review is set aside and in substitution the Tribunal determines that the percentage of incapacity in relation to civil employment of Geoffrey Howard Altham has at all relevant times been more than 60%, pursuant to the provisions of the Defence Force Retirement and Death Benefits Act 1973 and that he should not have been re-classified from Class A to Class B with effect from 13 December 2002.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

Defence Force Retirement and Death Benefits – major depressive disorder – unemployable – more than 60% incapacity in relation to civil employment – Class A – decision set aside

Defence Force Retirement and Death Benefits Act 1973: ss30, 31, 34

REASONS FOR DECISION

Deputy President Don Muller
Dr J.B. Morley, Member     

1.      Geoffrey Howard Altham, the Applicant, seeks review of a decision dated 12 November 2002 that his percentage of incapacity in relation to civil employment is 50% and accordingly that he be re-classified from Class A to Class B, pursuant to the provisions of the Defence Force Retirement and Death Benefits Act 1973 (the Act), with effect from 13 December 2002.

2.      Mr. Altham claims that his percentage of incapacity in relation to civil employment has remained greater than 60% and that he should not have been re-classified from Class A to Class B.

3.      Part V of the Act provides invalidity benefits for members of the scheme established by the Act who have been retired on the ground of invalidity or physical or mental incapacity to perform their duties.

4.      The initial classification of a member is made pursuant to s.30 of the Act.  This section provides that the Authority shall determine the relevant member’s percentage of incapacity in relation to civil employment and shall classify the person according to the percentage of incapacity as follows:

60% or more:  Class A

30% or more but less than 60%:   Class B

Less than 30%:  Class C

5.      Section 31 provides for the rate of pension payable to a member classified either Class A, B or C.  A member classified Class C is not entitled to the payment of an ongoing pension.

6.      Section 34 of the Act gives the Authority the power to, from time to time, review a member’s classification according to the matters set out in ss.34(1A) and ss.34(1B), which provide:

“(1A)  In determining:

(aa)what is the percentage of incapacity in relation to civil employment of a recipient member;

..

the Authority shall have regard to the following matters only:

(a)the vocational, trade and professional skills, qualifications and experience of the recipient member;

(b)the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

(c)the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);

(1B)   In subsection (1A), “prescribed physical or mental impairment”, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:

(a)a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement;  or

(b)any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).”

7.      The Act does not state how the percentage is to be arrived at, except to note in ss.30(2) and 34(1A) that there be consideration of the degree to which the physical or mental impairment has diminished the capacity to undertake the specified kinds of employment.

8.      The following matters are not in issue and the Tribunal finds that:

(a)Mr. Altham was born on 19 September 1957.

(b)He completed Year 12 at school and obtained his Higher School Certificate.

(c)He joined the Royal Australian Navy on 8 August 1977.

(d)Between the date of his enlistment and the end of June 1985 he did a number of training and professional courses including the following:

Long Hydrographic
Minor War Vessel Navigation Course
H2 (Hydrographic Officer Course)
COMSEC Custodian Officer
Full bridge Watchkeeping Certificate
Limited Bridge Watchkeeping Certificate
Ocean Navigation Certificate
Minor Fleet Unit Bridge Watchkeeping Certificate
Harbour Watchkeeping Certificate
Midshipman Stage 3 AIO
Junior Officers Stage 3 Communications
SEAAC Phase 3 Gunnery Module
Junior Officers Administration Course
Junior Officers Stage 3 Air and Meteorology
Junior Officers Security Course
Junior Officers NBCD
Officers Introductory NBCD
Defensive Driving Course
Open Sailing Craft Helmsman Certificate

(e)On 6 August 1987, he was cycling to work when the car he was following suddenly stopped.  His bicycle hit the back bumper of the car and he was propelled forward, head first through the back window of the car.  He suffered a “closed head” injury.

(f)He was discharged at his own request on 8 March 1988.

(g)Between the date of his enlistment and the date of his discharge he held the following positions:

19.12.1986    LEUT             EXECUTIVE OFFICER, ASSISTANT                  
  SURVEYOR

16.02.1986    LEUT             EXECUTIVE OFFICER, ASSISTANT
  SURVEYOR AND OOW

02.10.1985    LEUT             EXECUTIVE OFFICER, ASSISTANT

SURVEYOR AND OOW

11.01.1978    MIDN             ASSISTANT SURVEYOR

9.      Mr. Altham’s statement (exhibit 3) covers the work he did during the first eighteen months after he left the Navy in March 1988.  He said:

“In 1988 I gained qualification for Queensland Master Grade 3.  This allowed me to master any of the tourist vessels operating out of Cairns at the time.  At one stage I was flown to Lizard Island (NE of Cooktown) to replace the master of MV Nimrod, who had suffered an injury.  Nimrod was (only) a “65 footer” but she was chartered at the time to carry well-heeled passengers on diving adventures.  The task was to take them to the outer “Ribbon Reefs” for dives in unique areas.  With the experience and qualifications that I had I was able to transit the uncharted waters of some pristine reefs south towards Cooktown for a week.

In 1989 I was employed by Sunlover Cruises to master the MV Sunseeker while they were establishing their company in Cairns.  This was a high-speed catamaran 35m in length and licensed to carry 439 passengers.  I was also required to master their “Yellow Submarine”.  In about June 1989 I was to be sent down to Melbourne to ferry back to Cairns a vessel for the company.  Although smaller than Sunseeker the problem was going to be my Master Qualification.  I sought advice through the Federal Department of Transport and was told to sit the required examinations and that approval would be granted.  I immediately sat the exams, passed and was granted USL Master Class 3 which allowed for the interstate passage of the vessel, MV Big Cat.  In fact, I suppose it was this event that made me want to rejoin the Navy.”

10.     Mr. Altham rejoined the Navy on 11 September 1989.  He remained in the Navy for approximately a further 10 years until he was discharged on 25 July 1999, on the ground of invalidity due to “anxiety and depression secondary to closed head injury”.

11.     During his second period in the Navy, Mr. Altham did the following courses, and held the following positions:

Charge of Survey

Minor War Vessel Navigation Course

Executive Management Program

CO/XO Designate Minor War Vessel Course

Small Ships Helo Vertrep and Transfer Course

Explosive Custodian Officer Course

MWV CO/XO Desig Helo Transfer Module (XO Only)

Minor War Vessel (MWV) CO/XO Desig NBCD Module

Minor War Vessel Navigation Course

01.09.1993    LEUT  COMMANDING OFFICER HMAS BENALLA

13.04.1993    LEUT  COMMANDING OFFICER HMAS BENALLA

01.09.1992    LEUT  EXECUTIVE OFFICER/SENIOR ASST SURVEYOR

01.06.1992    LEUT  EXECUTIVE OFFICER/SENIOR ASST SURVEYOR

15.09.1991    LEUT  EXECUTIVE OFFICER

29.03.1991    LEUT  EXECUTIVE OFFICER

28.12.1990    LEUT  EXECUTIVE OFF/SENIOR ASSIST SURVEYOR/NBCD

(OFF/SECURITY OFF)

11.09.1989    LEUT  STAFF OFFICER OPERATIONS

HYDROGRAPHIC OFFICE

He was discharged on the rank of Lieutenant Commander.

12.     During 1993/1994, Mr. Altham was Commanding Officer of HMAS Benalla, a hydrographic surveying vessel.  A major proportion of surveying work done by the ship was undertaken between Darwin and Southern Queensland and also to the north of Australia.

13.     In November 1994, the Benalla was operating in the Manus Island area when it anchored in a bay overnight.  The following morning the stern of the ship passed over a reef and scraped the bottom of the ship and damaged the propeller.

14.     An enquiry into the grounding of the Benalla was held in Cairns on 16 December 1994.  The Board concluded that Mr. Altham had made specific errors of judgment and that the grounding was his fault.  The Board recommended a course of action be taken against Mr. Altham which included an assessment of his suitability to continue as Commanding Officer.

15.     On 20 December 1994 a Medical Board of Survey reported:

“There have been apparently a series of incidents regarding his management of the ship that could have placed it in danger and these incidents may well be stress related.

…

This Commanding Officer presents a complex Medical Management problem. He has ultimate responsibility for the safety of his ship and crew.  In the light of the marked concern being expressed by his supervisors I do not consider him to be medically fit for Command Sea duties pending full assessment and management of any unresolved stress/anxieties that he has.” 

16.     From early 1995, Mr. Altham spent 18 months on sick leave.  During that time he was examined by a large number of medical specialists including a psychologist, neurologist, neurosurgeon, audiologist and a psychiatrist.  The medical reports placed before the Tribunal are voluminous.  Essentially, it was decided by late 1996 that Mr. Altham was suffering from a fairly severe psychiatric illness.  His “ability to maintain perspective and mental balance, subsequent to the court martial (was) severely impeded”.  His “psychological condition has oscillated between ‘just OK’ and severe depression and frustration”.  His intermediate memory for verbal material was described as “dysfunctional” and he would “experience great difficulty with courses and learning tasks”.  It was thought that he had some residual frontal lobe damage from the bicycle incident of 1987.  He was diagnosed by the various medical experts as having “closed head injury”, “dementia due to head injury”, “major depressive disorder” and “post concussion syndrome”.

17.     The medical reports clearly differed on diagnosis and on the causes of Mr. Altham’s illness, but on one thing they agreed;  Mr. Altham would never be well enough to go back to sea as a member of the Navy.

18.     From mid 1996, Mr. Altham was based on shore.  He made attempts at rehabilitation, interspersed with periods of sick leave.  Eventually, in July 1999, he was discharged medically unfit.  The Board of Final Medical Survey recommended that Mr. Altham be discharged on the grounds of physical/mental incapacity because of the condition of “anxiety/depression secondary to closed head injury”.

19.     On 19 October 1999, Mr. Altham was classified pursuant to section 30 of the Act as 60% Class A at discharge.  His retirement condition was determined as “dementia due to head injury with secondary migraine headaches”.  The types of employment for assessment purposes were Hydrographic Surveyor and Office Manager.  The Committee noted that Mr. Altham had a restricted capacity for ‘management abilities as well as a limited ability to accept responsibility”.

20.     Following his discharge, on 25 July 1999, Mr. Altham worked for five months in computer sales and for three months as a box office administrator with Mackay Council.  He was then unemployed for about two years.

21.     In March 2002, Mr. Altham commenced part-time employment as a self-employed taxi-driver.

22.     On 12 November 2002, Mr. Altham was reviewed pursuant to section 34 of the Act and it was decided to reclassify him as 50% Class B with effect from 13 December 2002.  His retirement impairment was re-described as “post concussion syndrome” and the types of employment relevant to be considered were determined as hydrographic surveyor, office manager and taxi driver.  This decision was affirmed on reconsideration on 12 December 2002.

23.     On 26 May 2003 the Respondent reconsidered the decision of 12 December 2002 and re-affirmed the decision, except that the words “Automobile Driver” were substituted for “taxi driver”.

24.     In November 2003, Mr. Altham was suspended from driving taxis because of an altercation he had with a passenger in his cab.  He has since been charged with the criminal offence of attempting to murder the passenger.

25.     Consultant Psychiatrist Dr. Duncan Wallace first examined Mr. Altham on 4 December 1997 by referral from Lieutenant Parker-Newlyn of HMAS Albatross Hospital, writing his report on 9 December.  He noted Mr. Altham’s past history of his head injury, following which he had been amnesic for ‘about 20 or 30 minutes’.  He recorded “feelings of despair, breaking down crying for no apparent reason, headaches, intermittent sleep disturbance with early-morning awakening, diurnal mood variation, lack of self-confidence, increased appetite with weight gain of about 10 kgs, absent libido, but some reactivity of mood”.   He diagnosed a Major Depression, stemming from his 1987 head injury, even although it was minor.  He remarked:    “There are plenty of cases in the literature where such injuries have been associated with development of Depression.  Unfortunately, they are often treatment resistant in nature.”  On examining the neuropsychological (psychometric) test results, he was satisfied, from the normal MRI brain scan report, that Mr. Altham was not suffering a frontal lobe syndrome.  His report of 19 February 1998 to the Military Compensation Rehabilitation service reiterated these views.

26.     General Practitioner Dr. Rian De Wall’s report of 7 May 2003 described Mr. Altham’s migraine headaches as “regular, debilitating” and that they would adversely affect his ability to drive a taxi.

27.     The report of 18 October 2003 of Consultant Psychiatrist Dr. Robert Athey is of his assessment of Mr. Altham of five days earlier, at the request of the Australian Government Solicitor.  With regard to his accident in 1987, in contrast to previously recorded histories that he was unconscious for about 20 minutes, Dr. Athey recorded the history that he was able to remember the motor vehicle approaching him, and remembered events soon after the accident.  The Tribunal notes that this accords with Mr. Altham’s account of the accident at the hearing.  Dr Athey noted that his history of anxiety and depression followed two episodes, the 1987 head injury, and the HMAS Benalla grounding incident in 1994.  He added:  “He appeared to become seriously upset and depressed after the 1994 incident and worse following his discharge from the Navy.”  His mental status examination findings suggested to Dr. Athey that Mr. Altham still had symptoms of depression; and he found no evidence of cognitive abnormality.  He specifically made no comment about post concussion syndrome, indicating that this was diagnosed by Neurologists and not Psychiatrists, and was not listed in DSM IV.  He doubted that Mr. Altham had frontal lobe damage, opining that if this had been significantly present he would have not been able to command a vessel at sea ”for as long as he was without the problem being very evident”.

28.     Dr. Athey diagnosed that Mr. Altham’s “symptoms of anger and depression are best accounted for by the diagnosis of a major depressive disorder”’, which was recurrent.  This was associated with possible minor neck injury and possible head injury, and difficulty adjusting to several incidents occurring in the Navy as well as to living as a taxi driver.  He disagreed with the diagnosis of post concussional syndrome.  He also remarked:

“As to the origin of his illness, on the history I obtained it is suggestive of the action that was taken after his ship ran aground.”

He considered that Mr. Altham was capable of working as a taxi driver.  However, in his telephone evidence to the Tribunal hearing, when asked for his opinion on this in light of his Attempted Murder charge, he told the Tribunal that his opinion was that Mr. Altham had no capacity to continue with that work.

29.     With regard to Mr. Altham’s diagnosis, Ms. Daniels, Consultant Psychologist, proposed three hypothetical DSM IV diagnoses in her latest report of 17 November 2003, of major depressive disorder, post traumatic stress disorder, or bipolar II disorder;  however, neither post traumatic stress disorder or bipolar disorder have been mentioned by any other medical witnesses.  In his report of 28 September 2002, Dr Boyce, Consultant Neurologist, remarked:  “Clearly, he has suffered a more significant depressive illness than he had when I first saw him.”  In his report of 9 December 1997 Dr. Wallace diagnosed Mr. Altham with a Major Depression, ascribing a significant role to his 1987 head injury.  Dr Gillman, Consultant Psychiatrist, reporting on 12 October 1999, referred to Mr. Altham’s significant symptoms of anxiety and depression since November 1995.  Dr Robert Athey, reporting on 18 October 2003, diagnosed a major depressive disorder which was recurrent. 

30.     Neurosurgeon Dr. Michael J Weidmann reported on 5 July 1995 to Ms. Daniels on his assessment of Mr. Altham.  Dr. Weidmann obtained the history of Mr. Altham’s bicycle accident eight years previously, rendering him unconscious for 20-30 minutes, requiring multiple sutures around his left eye.  Although he was taken to the Cairns Hospital, he did not need admission;  and in fact was back at work next day.    His headaches started from then.  Dr. Weidmann’s examination revealed no neurological abnormalities, including preserved sense of smell in both nostrils.  He agreed with the diagnosis of migraine.  He remarked that, because the Applicant was not admitted to hospital, his head injury was of only minor degree.

31.     Considerable attention has been paid to the possible role in the causing of Mr. Altham’s complaints of his 1987 head injury.  From the information provided at the hearing to the Tribunal by Mr. Altham regarding his head injury, it supports the opinions of Dr. Weidmann and Dr Athey that this head injury was minor.  The Tribunal has noted that the significance of the diagnosis of post concussion syndrome, as postulated by Ms. Daniels, Dr. Boyce, Dr. Gillman and Dr. Wallace, all appear to have been on the assumption that Mr. Altham lost consciousness or memory, following his injury, for some 20 minutes or more, which is contrary to his evidence given to the Tribunal.  Dr. Gillman went as far, in his report of 27 October 1998, to diagnose that Mr. Altham suffers ”dementia due to head injury’”

32.     However, although Dr. Weidmann accepted this same history of 20 minutes’ loss of consciousness, he adduced that the injury, although causing the migraines, was minor, because Mr. Altham did not require hospital admission.  Being the only Neurosurgeon of all of the medical witnesses, the Tribunal places the most weight on his opinion on this aspect of the case.  Furthermore, even if Mr. Altham had sustained a significant head injury with concussion, the duration of the post-concussion syndrome would seem unlikely to have persisted for up to seven years thereafter; and common sense indicates that it would have been particularly improbable to have continued to the present time, as conceded by Dr. Boyce in his telephone evidence.

33.     The Tribunal concludes, on balance of probabilities, that the Applicant’s head injury was of too mild a degree to have played any significant physical role in contributing to his subsequent protracted and complex difficulties.

34.     Further to this, although Ms. Daniels, as a result of her neuropsychological testing, has referred in several reports to Mr. Altham having suffered frontal lobe brain damage, there is no supporting evidence for this.  Thus, as well as concluding that the head injury was of only minor extent, the Tribunal notes that his MRI brain scan showed no evidence of frontal lobe injury.

35.     Also, although Mr. Altham’s first EEG, as reported by Dr. Boyce in his report of 25 January 1995, showed some changes, these did not particularly involve the frontal lobe regions of the brain, if anything being more localised to the left temporal region; and these had subsided when the EEG was repeated, as described by Dr. Boyce in his report of 2 December 1996.  In addition, in his telephone evidence to the Tribunal, Dr. Boyce stated that, apart from his migraine headaches, Mr. Altham suffers no current neurological problems.

36.     In his report of 9 December 1997 Dr. Wallace was satisfied, from the results that he studied of Mr. Altham’s psychometric tests performed by Ms. Daniels and from his normal MRI brain scan, that he was not suffering a frontal lobe syndrome.

37.     The Tribunal accepts the view expressed by Dr. Athey, that if Mr. Altham had suffered frontal lobe damage, he would have been incapable of commanding a seagoing vessel for as long as he was, before the grounding of the HMAS Benalla.  On these grounds, on balance, the Tribunal concludes that Mr. Altham did not suffer any frontal lobe injury in his 1987 bicycle accident.

38.     The Tribunal accepts and adopts the clear statement by Dr. Athey in his report:

“As to the origin of his illness, on the history I obtained it is suggestive of the action that was taken after his ship ran aground.”

39.     Mr. Altham’s progressive deterioration since his court martial is evident in the sequence of reports from Ms. Daniels.  Dr. Boyce, on 26 September 2002, remarked on his depressive illness, having progressed since he had first seen him.  Dr. Gillman, after noting in his letter of 20 December 1996 that he found that Mr. Altham showed ‘”no evidence of any emerging depressive illness”, on 12 October 1999 reported that, since November 1995, he had developed  significant symptoms of anxiety and depression, sometimes with suicidal ideation.

40.     It is clear that the Board which investigated the grounding of the Benalla had developed a suspicion, based on the evidence of the ship’s crew, that Mr. Altham may have had some psychiatric instability at the time of the grounding.  They ordered Mr. Altham to undergo a medical assessment, which included a psychiatric assessment.

41.     The Tribunal concludes that Mr. Altham probably had an existing psychiatric condition before he became seriously upset and depressed following his court martial over the HMAS Benalla grounding incident, and worse following his discharge from the Navy.  That is, he experienced a serious aggravation of a psychiatric condition which  may have already existed at the time of the grounding of the ship.

42.     The Tribunal finds that at all times relevant to this review Mr. Altham was suffering from a major depressive disorder.

43.     As for Mr. Altham’s present fitness for work, all three medical witnesses who gave telephone evidence to the Tribunal (Ms. Daniels, Dr. Boyce and Dr. Athey) agreed that the Applicant was not fit to resume seagoing duties, nor any other naval duties, nor such civilian occupations as driving a taxi.

44.     The Tribunal observed Mr. Altham’s demeanour during his giving of his evidence at the hearing.  He exhibited considerable instability and sometimes an inappropriate and aggressive attitude.  He has little insight into his problems.  He believes that he was wrongly blamed for the grounding of the Benalla. He believes that he is capable of returning to sea duties.  He feels a great sense of injustice.  He is angry.  On the basis of the diagnosis of his major depression, and with these other observations, the Tribunal is satisfied that Mr. Altham is incapable of engaging in any ongoing employment.  He is quite simply unemployable as an hydrographic surveyor, office manager or automobile driver.

45.     The Tribunal finds that at all times relevant to this review Mr. Altham’s percentage of incapacity in relation to civil employment has been more than 60% and that he should not have been re-classified from Class A to Class B with effect from 13 December 2002.

46.     The decision under review is set aside.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller and Assoc Prof J.B. Morley, RFD, Member.

Signed:         .....................................................................................
C. O’Donovan, Associate

Date/s of Hearing   15 March 2004
Date of Decision   4 June 2004
Counsel for the Applicant           Mr. D. O’Gorman
Solicitor for the Applicant            Lawrence W. Hewitt & Assoc
Counsel for the Respondent       Mr. Doube
Solicitor for the Respondent       Australian Government Solicitor