Bensley and Comcare
[2003] AATA 405
•2 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 405
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/870
GENERAL ADMINISTRATIVE DIVISION ) Re PETER JOHN BENSLEY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr K L Beddoe, Senior Member
Dr K P Kennedy OBE, MemberDate2 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................(Sgd).....................
KL Beddoe
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – psychiatric condition – whether applicant’s psychiatric condition caused by his employment with the Army – whether applicant’s has a permanent impairment or whether injury was a temporary aggravation of a pre-existing condition
Safety Compensation and Rehabilitation Act 1988
REASONS FOR DECISION
2 May 2003 Mr K L Beddoe, Senior Member
Dr K P Kennedy OBE, Member1. This is an application for review of a decision of a delegate of the respondent dated 30 August 2001. That decision revoked the decision dated 3 September 2000 and the decision dated 31 May 2000 and substituted a decision accepting liability for a temporary aggravation of a pre-existing major depressive disorder, the date of the injury being 8 July 1999. It was further determined that the effects of that aggravation have now ceased and that the Commonwealth does not accept liability for the underlying condition. The application is brought pursuant to section 62 of the Safety Rehabilitation and Compensation Act 1988.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and a number of exhibits, which also included various medical reports. The applicant was represented by Ms Heyworth-Smith of counsel and the respondent by Mr Clark of counsel.
Legislative Framework
3. Section 24 of the Safety Rehabilitation and Compensation Act 1988 (the Act) provides that the Commonwealth is liable to pay compensation for an injury suffered by an employee which results a permanent impairment.
4. Sub-section 24(5) of the Act provides that, where an injury has resulted in a permanent impairment, the degree of permanent impairment is to be determined under the provisions of the Guide which is the Guide to the Assessment of the Degree of Permanent Impairment as prepared by Comcare pursuant to sub-section 28(1) of the Act.
5. The issue before the Tribunal in this matter is whether the applicant is suffering from a permanent impairment as a result of an injury he sustained during his service with the Army, or whether the injury resulted only in a temporary impairment for which liability has now ceased.
Evidence Before the Tribunal
6. The applicant gave oral evidence and stated that he is currently unemployed. He had first enlisted in the Army in August 1989 but earlier he had been in the Navy for about four months in 1988. His initial duties in the Army had been with an armoured unit in which he was a steward. Later he was assigned to Headquarters 1 Brigade. He said that in that Brigade he was "sort of isolated" and that he was harassed about his baldness. In relation to the baldness, he said that he thought that his hairline had started to recede about that time.
7. In 1990 he had stolen an Army car. The car was destroyed and was written off. He was in gaol for two weeks. After transfer to Headquarters 1 Brigade, his duties were that of car driver and truck driver. He also was trained to become a Crew Commander of tanks to man the guns. He felt more comfortable with those duties. He did get along with a couple of unit members but there were a few with whom he did not get on with at all.
8. In 1992 there had been an incident at Holdsworthy Barracks when he had come back from a driving task. He said that after he had parked his vehicle a lance corporal and others had surrounded him and pulled him down into the middle of the compound and tied him down. They had tied him with his hands and feet behind his back and left him in the sun for what he believed was up to two hours. Later someone untied him. He said that he had been punched, threatened and teased at the time. After that episode he said that he did not get on with the unit members at all and that the main harassment had related to his baldness.
9. Later, while still with Headquarters 1 Brigade in late 1993, he recalled being tied to a tree in front of the Unit with high-ranking officers also present. He believed that he had been tied up for about half an hour. He agreed that he had only recalled that incident after a recent conversation with a Private Cullen.
10. During his evidence in chief, the applicant was asked whether he had taken any steps to fix the problems that he was having with the other members. He replied that, as he was not socially accepted, he had a hair transplant to try and fit in a little better but the hair transplant had not gone well at all.
11. In April 1994 he had been charged with prejudicial behaviour for using a vehicle for a personal trip to Tamworth after dropping some assault troopers off at Singleton.
12. His next deployment was at Butterworth in Malaysia. He stated that for the first couple of weeks he got on well with the other members but that their treatment of him changed "pretty instantaneously" after his hat fell off and the others saw that he had a hair transplant. He claimed that he was an immediate outcast and that subsequently no one would speak to him other than Private Cullen.
13. He described an incident in Malaysia when members of the Unit were in the jungle. He said that prior to this incident he had been called numerous names such as freak etc, and that this incident had resulted in him being held down on the ground, that it was pitch black and his life was threatened. There was also another episode when he claimed that he was forced by the Major to undertake a demanding activity when he was unwell even though the “medics” had recommended against his involvement. He had suffered heat stroke and had lost consciousness after fighting his way up and down hills and through lantana.
14. In about August 1994, he returned to Australia. At that stage he felt that he needed an easier job and so he returned to catering as a cook. In January 1995 he was assigned to 21 Construction Squadron. He had not known any of the people in this Squadron before. Initially he got on well with other unit members but then the hair issue came up again. He said that he was just interested in working hard at that time and did not seek to socialise.
15. In June 1997 he was deployed to Tonga. There he worked as cook. He said that he only got on with one or two members of the Unit there. While in Tonga he was promoted to the rank of Lance Corporal.
16. In July 1998 he returned from Tonga and was sent to the Gulf of Carpentaria where he had to get all the stores together to service five satellite kitchens. He had to cook for eighty people, sort out the rations for the satellite kitchens and arrange purchase of food. He found the workload to be beyond his capabilities and because of the stresses on him he did not get on well with others. He therefore sought a transfer and was transferred to 25/49RQR at Enoggera
17. At Enoggera he was promoted to Corporal and again worked as a cook. For the first couple of weeks he got along fine with his new unit members but then "for some reason it diminished quite a bit after that”.
18. In February 1999 he sustained a back injury while playing touch football and subsequent to that injury he attended hospital and, at about that time, he was referred to a psychologist. He had sought the advice of the psychologist because he needed help, in that he could not deal with the day to day of Army life any more. He said that he could not deal with the people who had given him a hard time over the years. He said that those feelings developed after the football incident.
19. He thought that he had first seen Dr Chalk about August 1999. He had been discharged from the Army with 10% disability for his back and for psychiatric reasons. He has continued to be regularly reviewed by Dr Chalk since that time.
20. Prior to the completion of his evidence in chief, the applicant said that he had not made any formal complaints about the treatment he had earlier described in evidence because of the likelihood of some reprimand or "some sort of payback system".
21. After leaving the Army he had worked for the Queensland Police for about four weeks. After he complained of a sore back he was dismissed and although he had been looking for work since, he had not been successful.
22. During cross examination the applicant agreed that when he arrived at a new unit, relations between him and his fellow unit members would be fairly amicable during the initial couple of weeks and thereafter relationships would deteriorate. In relation to his brief time with the Queensland Police he said that he had a problem with an eighteen year old who was teaching him administration and that "we had a personality problem".
23. In reply to further questioning by Mr Clark, the applicant said that he had been tied up a total of three times. He said that in the event in Malaysia his hands had been tied up with plastic. He had felt a cold object which he had believed was a knife held against his neck. Mr Clark asked the applicant why he had not mentioned in his evidence in chief that he had been tied with plastic and that he had had a knife held against his neck. The applicant replied that he did not know why he did not include the important piece of detail about the knife in his evidence in chief but he had not been asked. Later he told Mr Clark that he believed that he had told Dr Nothling, Dr Alcorn and Dr Chalk about the knife incident.
24. Mr Clark took the applicant to the incident in 1992 when he had been pulled to the ground in the compound and tied up. The applicant said that he believed that his friend Private Cullen had untied him but Private Cullen does not recall the incident. In relation to the later incident, when the applicant said that he was tied to a tree, he told Mr Clark that he had forgotten about that incident until reminded about the event by Private Cullen about a week prior to the hearing. After being reminded, he recalled the incident himself. He said that it had followed an exercise about interrogation training and tying up prisoners of war. He said that when he was tied to the tree that was not part of the training program. He believed that the tying had something to do with ongoing harassment, bullying and bastardisation against him.
25. The applicant was asked by Mr Clark if he had done an harassment and discrimination course in March 1999. He said that he did not remember but he might have attended. He recalled leaving a course about that time after about half a day because he thought that it was pathetic. In July 1999 he had been referred to a psychologist because of work related stress.
26. Mr Clark referred to a number of entries in the psychologist’s reports. The initial report about the applicant had related the stress to his story that he had been made to work under very trying and apparently unacceptable circumstances for an extended period of time. During extended cross examination the applicant claimed that he would have kept information about his own harassment from the psychologist because he was a Major and he did not trust him and felt that the information could be passed back to the Unit and he would be given a hard time.
27. For these reasons he did not think that he would have told the psychologist about being tied up but the applicant was then referred to these notes in one of the psychologist's reports:
“He reports being tied up and left in the transport yard for approximately thirty minutes on one occasion and he still felt isolated due to his refusal to take part in distasteful activities.” (T4/14)
28. The applicant claimed that he would not have told the psychologist about the incident when he was tied up in Malaysia because he did not think that he was prepared to open up fully to the Army psychologist.
29. The applicant was referred to another extract from the report of the psychologist, which reads:
“According to Corporal Bensley, the isolation and segregation from colleagues that he has been experiencing at 21Construction Squadron and 25/49 RQR began at his first posting to Cavalry Regiment in 1989 He indicated that he felt intimidated by bullies at 2 Cav as a result of his refusal to take part in kinds of group sex activities, groups of men picking up girls at clubs and hiring prostitutes and his refusal to take drugs – use drugs. He states that he wasn't in with the in crowd and that he could not report the activities above- described for fear of reprisals.” (T4/14)
He agreed that he did make that comment to the psychologist.
30. The next two witnesses had served with the applicant in the Army. Craig Cullen gave evidence by telephone. He had first met the applicant in 1991 and had been in the same Unit. He had also been with him in Malaysia. Mr Cullen said that the applicant had been targeted when there was the opportunity for a practical joke. If he did not perform to his best ability compared to fitter soldiers, he might be labelled as lazy or the weakest link.
31. Mr Cullen referred to the event in Malaysia in which the applicant had been required to take part in an Army exercise and had suffered heat stroke. In his written statement (T Docs Folio 60), Mr Cullen had noted that that episode had highlighted the mood toward soldiers who were not as strong or as popular as others. During his evidence in chief, he said that while the applicant was being attended to by medics, the OC had yelled across the paddock "What's going on there?". The Platoon Commander had yelled, "He's fucked; He does not look good".. Mr Cullen felt that such a description was contrary to first aid training. He agreed however that it was a description of the applicant’s condition at the time. Subsequently the applicant had become known to everyone as the “weakest link”. He said that no one in authority did anything to intervene in relation to his treatment by others because there was no one singular incident that in their perception would have warranted intervention.
32. During cross examination Mr Cullen said that the tying incident had happened in Malaysia and not at Holdsworthy as the applicant had reported. He also said that the applicant had been tied to a steel pole and not a tree and that the tying had been part of a routine training exercise which might have involved anyone in the Unit. He said that nothing was done beyond the confines of the training lesson and there had been nothing objectively wrong with the safety or conduct of the lesson. In relation to the heat stroke incident, Mr Cullen did not dispute that the applicant had received appropriate medical care.
33. The second witness who had served with the applicant for about two and a half years, Dale John Wesley, also gave evidence by telephone. He had first met the applicant at 21 Construction Squadron based at Enoggera. During cross examination he said that the applicant had been subject to a bit of ridicule about his hair transplant and that it had been the sort of banter that others might receive because of aspects of physical presentation such as someone with a long nose or someone who was overweight etc. He did not think that the banter had got completely out of hand. It tended to come up in the mess or boozer. Initially he said that he could not say how frequently the banter would occur but when asked would it occur daily he responded that it would. Earlier, during his evidence in chief, Mr Wesley said that on one occasion the applicant had mentioned to him that he was sick of the banter and asked Mr Wesley if he would have a word with people on the side about it. The witness believed that he did so but he could not honestly say if it had been of any effect.
34. The first medical witness was Dr Newton Chalk, a specialist psychiatrist. Dr Chalk had provided a series of written reports and he also gave evidence by telephone. Dr Chalk had first seen the applicant towards the end of 1999 and he had been his treating psychiatrist since that time. He reported that he is currently seeing the applicant about every three weeks.
35. In his evidence in chief, Dr Chalk said that initially he had made a diagnosis of an affective disorder with the possibility of more delusional thinking behind his problems. Later he came to the conclusion that it was not delusional. He was referred to his written report dated 25 July 2000, in which he had stated that his formal diagnosis was that of a major depressive illness He also confirmed that he considered that the applicant had long standing personality difficulties which made the treatment of depression more complex. Those personality difficulties seemed to have come out in the latter part of his military service and he has mixtures of paranoid and dependent personality. He had had difficulties in his relationships with people.
36. Dr Chalk said that people with severe personality disorders would tend to be excluded in one way or another in the Army and it would be uncommon for someone with a severe personality disorder to continue to be promoted, to get good reports or to remain in the Army for eleven years.
37. Dr Chalk told Ms Heyworth-Smith that in his opinion the applicant's impairment was currently about 10% having regard to his improvement on antidepressants. Dr Chalk said that although depression may be precipitated by a stressor, it tends to take longer to resolve.
38. During cross examination, Dr Chalk agreed that the three significant events upon which he had placed a fair amount of reliance had been the reaction to the hair transplant, the tying up as outlined in the report of Dr Alcorn and his treatment in Malaysia. The applicant had not told Dr Chalk of any tying up incident in Australia but he had told him that he had not been given appropriate treatment at the time of the heat stroke incident. Dr Chalk agreed that he would have acted upon that history believing it to be accurate.
39. In his letter dated 26 May 2001, Dr Chalk said that he was not of the view that his military employment had caused his condition but rather that it had aggravated the condition and that although he had improved, that aggravation had not settled with the passage of time. In a letter, dated 23 April 2002, to the solicitors for the applicant, Dr Chalk had replied "No" to the question "Is the aggravation alone a permanent and continuing condition?".. In a subsequent letter dated 2 May 2002, he said that his reading of the question had been inaccurate and not consistent with his previous views. He then stated, “His current condition is due to the aggravation and I do not see this state of affairs altering in the foreseeable future and in my view this represents a permanent change of state”.
40. During further cross examination, Dr Chalk said that the applicant had asserted that he believed his psychiatric condition to be a consequence of his back problems, but Dr Chalk did not agree and opined that it was harassment in the military that led to his breakdown and eventual seeking of psychiatric treatment. Dr Chalk agreed that the events in Malaysia had occurred some five years before he had seen the applicant. He had also said in a report that other life stresses of similar severity could be expected to have precipitated a similar breakdown. He said that given a whole pile of other circumstances that was possible but that the circumstances that he was dealing with was that these events had occurred in the military.
41. The next psychiatrist to give evidence was Dr D A Alcorn who gave evidence in person. Dr Alcorn mentioned that in November 2000 he had been advised that the applicant was following him around with a petrol can, this having occurred within a few months of his earlier interview by Dr Alcorn.
42. During the course of his evidence in chief, Dr Alcorn said that the school reports had painted a favourable picture of the applicant. They showed a boy that was reasonably focused on his school work and the teachers were not raising any major red flags. He had also had the opportunity to see some of his soldier performance reports. There were few adverse comments and he had obviously acquitted himself at least average level or better. The comment had been made that the applicant tended to blend in the background and needed to be more assertive.
43. Mr Clark brought to the attention of Dr Alcorn the differences in the accounts of the applicant and the earlier witness Mr Cullen in relation to the incident when he had been tied up. Dr Alcorn said that individuals with personality disorders can distort the flow of information coming to them and can express it in a manner in which other bystanders might not recognise as being the same scene or the same conversation. Sometimes there will be a process of blaming others and devaluing others with some distortion of reality. This can be a mixture of conscious and unconscious.
44. In the absence of objective evidence of victimisation and harassment, Dr Alcorn was of the opinion that the perceptions of the applicant reflected long standing dysfunctional interpersonal attitudes and behaviours not arising from Army service.
45. Dr Alcorn then explained why he disagreed with the assessment of Dr Chalk. He said that personality disorders are by their nature long and fluctuating courses of behavioural and cognitive and emotional disturbance that occur over a period of time. After looking across his history he has concluded that the episodic loss of behavioural and emotional control was most likely arising out of the personality disorder itself. In other words it represented the natural history of a personality disorder when placed under emotional stress rather than a permanent aggravation.
46. During cross examination, Dr Alcorn said that in his opinion the diagnosis of depression made by Dr Chalk no longer applied. He thought that the applicant could have had an adjustment disorder or a major depressive illness earlier.
47. In relation to the events in Malaysia, Dr Alcorn said that the evidence for the applicant having a temporary exacerbation as opposed to a permanent aggravation was that after he came back from Malaysia he participated in courses and he got promotions.
48. Dr Alcorn postulated that the applicant’s acute decompensation in mid 1999 was that because of his back, he was unable to be posted to general duties and he was placed as a supernumerary in a cooking or catering facility. As a result he lost the self esteem on which he depended so much because of his inability to do the job.
49. Dr Alcorn agreed that various stresses such as the workplace stress in 1998 when he worked with rations in Tonga and later Carpentaria would have contributed to exacerbations over time but he did not believe that they had contributed to the condition of the man on the day that he had examined him. Dr Alcorn opined that there were many factors in the Army that would have assisted his personality disorder but there had been negative factors also.
50. Dr Alcorn read a definition of personality disorder. It is an enduring pattern of inner experience and behaviour which deviates markedly from expectations of the individual's culture. It is pervasive and inflexible. It is present by adolescence or early adulthood, and it causes functional impairment.
51. Dr Alcorn in his written report noted that the features of mixed personality disorder with avoidant, dependent and paranoid elements had been accompanied by intermittent expressions of extreme anger and rage. He had stalked a regimental sergeant major and had described remorselessness at the possibility of incinerating that man's children and consistent with his personality disorder, he had assaulted another soldier and still shows no remorse for that action. Dr Alcorn gave this as an example of his difficulty in empathising with others.
52. The next psychiatrist was Dr Martin Nothling who also gave oral evidence. Dr Nothling said that the applicant had given a history indicative of a dysfunctional childhood. He had throughout his life a difficulty in establishing meaningful relationships with others and overall he presented with features of a mixed personality disorder with paranoid, avoidant and dependent components. He confirmed that in his written report he had opined that the personality disorder would render him commercially unemployable in any office situation or where he was working with others, and his work record would seem to attest to his opinion in that regard.
53. Dr Nothling in his evidence in chief said that the history of problems with others occurring within a short time of his transfer to a new unit is the type of pattern seen in many people who do suffer from the type of personality disorder that he had diagnosed.
54. During cross examination Dr Nothling said that this type of person often does attract comment from others but that its their real perception of what others are saying that is usually the difficulty for them because of their personality structure. They can interpret what others are saying in ways that people who don't have that personality structure would not.
55. Ms Heywood-Smith asked Dr Nothling if he would agree with Dr Chalk that rage and anger could be a symptom of depression. Dr Nothling did not disagree that such symptoms can occur in depression but he said that in his experience rage and anger indicates some underlying personality of the particular person. However for the majority of depressed persons rage and anger is not a feature.
56. In his written report Dr Nothling stated that the personality disorder would in his opinion be the major obstacle for him in terms of further employment. Despite ongoing psychiatric treatment he has remained dysfunctional and Dr Nothling did not consider that he would ever return to work. He considered that the applicant would have ongoing dysfunction during his life due to the severe nature of his personality disorder. When subject to various stressors he is likely to decompensate again into a major depressive disorder and a generalised anxiety disorder.
57. The final witness was Warrant Officer Colin William Lantry. He gave evidence by telephone. He had been twenty-seven years in the Army and had been in Malaysia for part of the time that the applicant had served there. He said that when the applicant had collapsed with heat stroke he had been given immediate and appropriate treatment. He had no knowledge of the applicant having being forced to undertake the jungle exercise when unwell. He had no knowledge of the applicant having received verbal comments about his hairline or transplant nor had he been aware of the applicant having been physically assaulted at any time.
58. When cross examined by Ms Heyworth-Smith, Warrant Officer Lantry agreed that he could not observe the 130 odd people in the three platoons under his control constantly. He did state however that soldiers were encouraged to report any physical assault or harassment to the platoon staff or himself or if they preferred with the Padre. If problems are reported they are kept in confidence.
Review of Evidence
59. All three psychiatrists agreed that the applicant does have a personality disorder within a mixed spectrum with elements of avoidant, dependent and paranoid traits. Dr Chalk maintained that it was his opinion that the applicant had developed a major depression as a result of certain experiences in the Army. Dr Chalk regarded that depression as an aggravation of the underlying disorder and that that aggravation, although having improved since 1999, had persisted and become permanent.
60. Dr Alcorn, on the other hand, disagreed with Dr Chalk and explained that personality disorders by their nature have a long and fluctuating course of behavioural and cognitive and emotional disturbances that occur over a period of time. Having regard to the history in the case of the applicant, that history represented the natural history of a personality disorder when placed under emotional stress rather than a permanent aggravation.
61. Dr Chalk in his evidence agreed that the three significant events upon which he had placed a fair amount of reliance as causative factors had been the reaction to the hair transplant, the tying up as outlined in the report of Dr Alcorn and his treatment in Malaysia. Yet Dr Chalk agreed that the events in Malaysia had occurred five years before he had first seen the applicant and as Dr Alcorn had noted, subsequent to the incidents described in Malaysia, the applicant had come back to participate in courses and had got subsequent promotions. This indicated in the opinion of Dr Alcorn that any exacerbation in Malaysia would have been temporary.
62. Dr Alcorn said that various stresses during his Army career such as the back episode, the time in Tonga, the experiences in Carpentaria, and his time in Malaysia would have caused temporary exacerbations but that, in his opinion, those experiences would not have contributed to the condition of the applicant on the day that he had examined him.
63. Dr Martin Nothling also expressed the opinion that the personality disorder would be the major obstacle for the applicant in terms of further employment. He believed that the applicant would have ongoing dysfunction during his life due to the severe nature of his personality disorder. He said that when subject to various stressors the applicant would be likely to decompensate again into a major depressive disorder and a generalised anxiety disorder. Dr Nothling said that the applicant has an underlying personality disorder which is difficult to treat but the decompensations which will occur from time to time, would be an easier component to treat.
64. In considering the opinion of Dr Chalk we note that Dr Chalk said that he would have acted on the history given to him in the belief that it was absolutely accurate. He had placed a fair amount of reliance on three events which he had regarded as significant.
65. First there was the hair transplant. The Tribunal acknowledges that the applicant was clearly sensitive to the appearance of his hair both before and after the transplant. The Tribunal remains to be convinced however that comments made by other Army members would have been responsible for any long-standing psychiatric illness. It will be noted that he did not mention any such concerns to the Army psychologist early in 1999 and that the first recorded mention of the hair as a basis for his illness was after his initial consultation with Dr Chalk late in 1999. Even at that stage he had initially told Dr Chalk that he believed his depression to be due to his back pain .He gave as the reason for not telling the psychologist that he did not trust him as an Army major to keep the history confidential but he had in fact told the psychologist of other alleged harassment to himself.
66. Certainly both Mr Cullen and Mr Wesley in their evidence had stated that the hair transplant had been the subject of jokes at the expense of the applicant and yet it is notable that Mr Cullen had made no reference to the hair transplant in his statement of 22 November 1999 (T Docs Folio 60). Finally although the applicant now refers to the hair as being responsible for his failure to get on with members of the earlier units, he attributed his failure to get on with others at Carpentaria as being due to work stress at the time and, at Enoggera, he said that he got on fine with other members for the first few weeks but then "for some reason it diminished quite a bit after that”.
67. The next significant event relied upon by Dr Chalk was the tying up episode as outlined in the report of Dr Alcorn. That report had related to the alleged tying up incident at Holdsworthy in 1992 in which the applicant said that he had been untied by his friend Private Cullen. Private Cullen does not recall the event however nor was there any other supportive evidence for that event having occurred. Private Cullen in his evidence said that the tying up had occurred in Malaysia and had been no more than a training event for which any soldier might have been selected. The tying up had therefore not been an harassment as the applicant had described to Dr Chalk.
68. The third event relied upon by Dr Chalk was the treatment in Malaysia. Dr Chalk accepted the story from the applicant that he had suffered from heat stroke in Malaysia and had not been given appropriate treatment because of his hair. While the applicant had experienced heat stroke, both Mr Cullen and Warrant Officer Lantry had both confirmed in evidence that he had received immediate and appropriate treatment for the heat stroke. We note that Mr Cullen said that the applicant was the subject of bullying behaviour but he used only the heat stroke incident as an example. The Tribunal accepts that the platoon commander in using what Mr Clark had described as colourful language had meant only to convey a sense of urgency and the words should not be construed as in any way derogatory to the applicant.
69. Dr Chalk also recorded that the applicant had been kicked, punched, tormented and socially ostracised. No evidence was produced to confirm that the applicant had been physically assaulted in any way at any stage. The Tribunal therefore believes that Dr Chalk was misled in relation to that history.
70. The Tribunal is therefore satisfied that Dr Chalk has based his opinion on incorrect information. Dr Alcorn said that individuals with personality disorders can distort the flow of information coming to them and can express it in a manner in which other bystanders might not recognise as being the same scene or the same conversation. Sometimes there will be a process of blaming others and devaluing others with some distortion of reality. The Tribunal believes that Dr Alcorn has provided the basis to explain the discrepancies in the information provided.
71. Further support for the diagnosis of Personality Disorder was provided by Dr Nothling who said that the history of problems with others occurring within a short time of transfer to a new unit is the type of pattern seen in many people who do suffer from the type of personality disorder that he had diagnosed in this case.
72. Dr Nothling also stated that this type of person does attract comment from others but that it is their real perception of what others are saying, that is usually the difficulty for them, because of their personality structure. They can interpret what others are saying in ways that people who do not have that personality would not. Thus Dr Nothling has also provided an explanation for the discrepancies in the history given by the applicant
73. For the reasons set out above the Tribunal does not accept that Dr Chalk has based his diagnosis on the true facts of the case. That of course is in no way a reflection on Dr Chalk for as the treating psychiatrist it was his role to accept as factual the history as put before him. The Tribunal believes that having regard to the overall evidence, both Dr Alcorn and Dr Nothling have been more persuasive in relation to the correct diagnosis. The Tribunal finds that the diagnosis in this case is that of a personality disorder of fluctuating severity and that the applicant has not suffered a permanent exacerbation of the underlying psychiatric illness as a result of Army service.
74. The Tribunal will therefore affirm the decision under review.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe, Senior Member and Dr K P Kennedy OBE, Member
Signed: Sarah Oliver
AssociateDates of Hearing 3 to 5 March 2003
Date of Decision 2 May 2003Counsel for the Applicant Ms Heyworth-Smith
Solicitor for the Applicant D'Arcys Solicitors
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Phillips Fox
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