Benton and Military Rehabilitation and Compensation Commission
[2005] AATA 620
•29 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 620
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/90
GENERAL ADMINISTRATIVE DIVISION ) Re ALAN GARY BENTON Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal M J Allen, Member Date29 June 2005
PlacePerth
Decision 1. The decision of the respondent made on 29 January 2003 is set aside. The matter is remitted to the respondents with a direction that the applicant is entitled to compensation under the Compensation (Commonwealth Government Employees) Act 1971 and the Safety, Rehabilitation and Compensation Act 1988.
2. The costs of the proceedings incurred by the applicant are to be paid by the respondent.
............(sgd MJ Allen)........
Member
CATCHWORDS
WORKERS COMPENSATION – applicant assaulted by fellow employees (naval apprentices) many years prior to diagnosis of generalised anxiety disorder (“GAD”) – consideration of when the applicant contracted the disease – finding that applicant suffered an impairments in 1972 or thereafter and liability was to be determined by reference to the Compensation (Commonwealth Government Employees) Act 1971 – finding that applicant gave notice of injury and made a claim for compensation within the specified times but that, in the alternative, any failure to do so was due to the applicant’s ignorance of his ability to claim – finding that applicant’s GAD was causally connected to his assault in 1970 and the assault contributed to his contraction of GAD – finding that an incapacity for work resulted from the disease - decision under review set aside and matter remitted for reconsideration with a direction that the applicant is entitled to compensation
Commonwealth Employees Compensation Act 1930
Compensation (Commonwealth Government Employees) Act 1971 ss 5, 27, 29, 53, 54
Safety, Rehabilitation and Compensation Act 1988 ss 7(4), 124
Comcare v Luck [1999] FCA 100
Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Treloar v Australian Telecommunication Commission (1990) 26 FCR 316, 97 ALR 321, 12 AAR 535
REASONS FOR DECISION
29 June 2005 M J Allen, Member 1. In these proceedings Mr Alan Gary Benton (“the applicant”) seeks review of a decision made by a delegate of the respondent on 29 January 2003 to affirm an earlier determination made on 19 March 2002 to deny liability for a claim for “mental stress” under the Safety Rehabilitation and Compensation Act 1988 (“the 1988 Act”).
2. At the hearing of the matter the applicant was represented by an advocate, Mr Woods, and the respondent was represented by Mr Lenczner of counsel. The Tribunal received into evidence the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1-T49) together with Exhibits A1 and A2 tendered by the applicant and Exhibits R1-R8 tendered by the respondent. Oral evidence on behalf of the applicant was given by the applicant and Dr John Kemp, and on behalf of the respondent by Dr Steven Proud, Mr Paul Ontong and Mr Alan Camac. Drs Kemp and Proud are psychiatrists.
Background
3. The background to the matter is that the applicant was born in August 1952 and enlisted in the Royal Australian Navy in July 1969. He trained as an apprentice and subsequently worked in the area of electronic equipment. He was discharged after 20 years service at the rank of Chief Petty Officer in July 1989.
4. In July 2001 the applicant made a claim for compensation (T3) under the 1988 Act, describing the injury or illness that he was claiming for as “mental stress due to bastardization in Navy and assault on same occasion”, identifying June 1970 as the date on which the injury happened or when he first noticed the disease or illness and nominated “July-August 1970” as the time at which he first received medical treatment for the injury or illness. The applicant described the events which lead to the injury for which he was claiming as “this was a case of bastardization over a period of approx. 6 weeks by a group of apprentice seniors”.
5. In the following months the respondent made inquiries with the Department of Defence regarding the alleged bastardization and assault but failed to locate records to substantiate the applicant’s allegations. On 19 March 2002 a Delegate advised the applicant (T18) that liability would not be accepted to pay compensation because no evidence could be located to verify the assaults or that the applicant had sought medical treatment in 1970.
6. The applicant sought reconsideration of that determination and subsequently provided the respondent with documentation that he had been able to locate from Department of Defence records, including documentation that revealed that the applicant had indeed been assaulted by another sailor on 17 July 1970 (T44).
7. On 29 January 2003 the respondent affirmed the earlier determination to deny liability and advised the applicant accordingly (T49). The decision-maker found, in the light of the new information available, that the applicant had been assaulted in 1970 during his Navy service but noted there was no medical records to indicate that the applicant had sought or received medical treatment for an anxiety or similar condition in or around 1970. The decision-maker accepted that the applicant had at the time of the decision a generalised anxiety disorder (“GAD”) but was not satisfied, having reviewed medical reports obtained from two psychiatrists, Dr Kosky and Dr Proud, that the GAD was “…caused in a material degree by your former Navy service”.
Statutory Framework
8. The applicant’s claim for compensation was made in 2001 under the 1988 Act. However, the events in dispute in this case go back to 1970 and the respondent contends that the issue of liability must be determined having regard to legislation that preceded the 1988 Act, namely the Commonwealth Employees Compensation Act 1930 (“the 1930 Act”) or the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”). Accordingly, it is necessary to consider the transitional provisions of the 1988 Act in order to determine what legislation is applicable.
9. The commencement dates for the 1971 Act and the 1988 Act were 1 September 1971 and 1 December 1988 respectively. Section 124(1) of the 1988 Act provides that that Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day. However, s124 (2) provides that a person is not entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage under the 1930 Act or the 1971 Act where the injury, loss or damage was suffered before the commencement of the relevant Act. Where an injury is suffered before the commencing day of the 1988 Act, a reference to an injury suffered before that date is a reference to an injury within the meaning of whichever of the 1930 Act or the 1971 Act was in force when the injury was suffered as that Act was then in force.
10. As French J observed in Comcare v Luck [1999] FCA 100 at [32], the application of s124 depends upon the date on which the injury in question was suffered and that, while this will be a matter of fact for discrete traumas, the definition of date of occurrence for a disease requires legislative assistance – which is provided by s 7(4) of the 1988 Act. That subsection relevantly provides that for the purposes of the 1988 Act an employee shall be
“…taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
11. Although it was not in dispute that the applicant had been assaulted by other apprentices in 1970 and that, when he made his claim in 2001, he was suffering from a GAD, it was in dispute as to whether there was any sufficient connection between the assault and the onset of the GAD for the purposes of whichever compensation legislation applied to the applicant’s position.
12. The respondent also contended that, pursuant to s 16 of the 1930 Act or s 53 of the 1971 Act, the applicant has no entitlement to compensation because he failed to give notice of his injury within the time specified for doing so or, if he did, then any notice he did give failed to comply with the requirements of whichever section was applicable and the respondent was prejudiced by the failure. Further reference to these provisions will be made below.
The Evidence
Prior to Enlistment
13. The applicant was brought up in a small country town in Victoria. He failed year eleven at school and was half way through repeating it in the following year when he enlisted in the Navy in mid 1969. A naval psychologist involved in the enlistment process noted at the time that the applicant appeared “quite bright and alert” and that he seemed “…adequately adjusted, but has been a severe underperformer at school, and has obviously been a bit of a troublesome influence at school (the common problem of the under stimulated bright boy). One might predict that this behaviour pattern would repeat itself… [in the Navy]. …I feel he is risky on personality, and could be a behaviour problem.”
14. As a result of comments made in psychiatric reports of Dr’s Proud and Kemp, the applicant was asked about an experience when he was at school when he had been bitten by a dog and suffered some facial scarring. He said that there had been a period when he had moved schools because his mother was unhappy with the behaviour of some other students towards him. There had been some teasing of him but this was not, in his opinion, of any significance. He said that he had been a poor student because he had not felt the need to work in order to pass exams and his failure in year eleven was for that reason.
Period of naval service
15. The applicant said that he had enjoyed his initial period as an apprentice. He had done very well in the initial courses and had been invited to consider officer training – but had declined to do so because he wanted to finish his apprenticeship. Notes made in January 1970 by an unidentified naval person and contained in exhibit R3 confirm this to be the case. The applicant said that there were no disciplinary or other conduct matters prior to the events of mid 1970 in which he and a number of other apprentices were assaulted by more senior apprentices.
16. The applicant said that he was assaulted on at least three occasions, the first two of which were frightening but not particularly serious assaults. However, on the third occasion the applicant had prepared for the anticipated assault (all of which occurred late at night) by taking a knife to bed with him with the intention of attempting to frighten off his attackers. However, he went to sleep and was awoken by his attackers - and in the scuffle that followed the knife fell to the ground and was picked up by one of the attackers, who lunged at him with it but did not cause him any injury. He was dragged from his bed out into a corridor where he was held by two apprentices whilst a third punched him in the stomach and head. He suffered injuries to his nose and was extremely frightened by the episode.
17. At about the same time a number of other apprentices were assaulted by senior apprentices, but because of the culture of not complaining that was prevalent among the apprentices no complaints were made initially. However, eventually one of the apprentices had left the base and reported the injuries to his parents – who arrived at the base with police officers.
18. The Navy then commenced an investigation and the applicant and the others who had been the victims were put under some pressure to make statements identifying the offenders. The applicant said that he was reluctant to do this because of the culture but eventually agreed to do so after being told by a warrant officer that the offenders would be dismissed from the Navy, which would remove any prospect of reprisals being taken against those who provided evidence of the assaults.
19. The offenders were eventually charged with various offences against a number of apprentices (including the applicant) and were sentenced to twenty eight days imprisonment but that was wholly suspended. The result was that the applicant perceived that the offenders had been dealt with very leniently and that the Navy was “more interested in rugby than the welfare of its members”.
20. The applicant said that thereafter he had been harassed to a certain degree and occasionally threatened by some of the offenders but he had never suffered further assaults. On one occasion, when he was living off the base, several of the offenders had called at his house looking for him – but he was not at home and only became aware of the visit subsequently.
21. The applicant said that after the assault period he became somewhat disillusioned with the Navy and believed that it was not interested in the welfare of those affected by the assault. He said that his academic performance suffered and he was often the subject of disciplinary action because of misconduct. He said in a statement prepared in November 2001 (T13) that the direct affect of the assault on him had subsided to anger by the time he finished his apprentice training but he had “… a deeply entrenched mistrust of people in authority”. He had begun drinking quite heavily after the assaults and was very angry that the staff on the base had known that bastardization of apprentices had occurred at times but no one had bothered to make sure that it did not get out of hand and did not act when they could have. The applicant said that thereafter he often confronted officialdom whilst intoxicated and that moved on to overt disrespect and disobedience. He would often invite confrontation rather than avoid it. By the end of his time at the apprentice school he had accumulated twenty seven minor misconduct charges and was the subject of a disciplinary warrant that involved sixty nine days stoppage of leave and a 20% reduction of pay for the same period. At no time did anybody in the Navy ask him why he had become so disruptive in his conduct.
22. The applicant’s naval medical and other records (Exhibit R2 and T11) reveal that he injured a finger in a fracas ashore in March 1972 (T page 190) and that in September 1972 he had been charged by police with several driving offences. The warrant for misconduct offences had been issued in November 1972 and his conduct had been assessed as poor in January 1973.
23. Commencing in early 1973 the applicant began to report to the naval medical post complaining of headaches. The first recorded attendance was on 30 April 1973 when the applicant was complaining of headaches approximately once every fortnight (T page 184) and the diagnosis was “tension headache”. Subsequent attendances for simular problems are recorded in February 1975 (diagnosis of migraine - T page 177; 25 July 1975 (sharp headaches eye strain – T page 176); 13 October 1975 (recurrent headaches – T page 174); 3 November 1975 (“headaches at his temples and at the back of his head occurring at anytime, and for 5 yeas duration” – T p74); 10 March 1976 (hypermetropic headaches – T page 173); 13 October 1978 (headaches, tense – T page 168); and 22 November 1978 (tension headaches – T page 167).
24. The applicant said that he was concerned about these headaches at the time because he feared that he might have some form of brain tumour but the view in the Navy was that he had some kind of eye strain – but after investigation this was found not to be the case.
25. Between March and June 1975 the applicant failed four training courses and failed a further two courses in 1977 and 1978 (T page 261). Between December 1969 and April 1987 the applicant passed a great many other courses.
26. The applicant married in 1974 and in 1975 he applied for discharge from the Navy, stating as his reasons an inability to adjust to service life because he could not accept the pettiness of discipline, that he was working on equipment that he considered obsolete, he did not like the prospect of going overseas or being posted away from his wife who suffered from nervousness, he and wife wanted to start a family and he did not want to be away from home if that occurred, and that “during the past two or three years my patience has dwindled to the stage where I am an aggressive person on board and at home. My parents and close friends often comment that I have no patience anymore”. The applicant also offered as reasons for discharge that the Navy made no allowance for human error and his mistakes and the system of “kangaroo court” in the Navy had cost him a lot of money and leave – and his superiors had no confidence in him as evidenced by his performance evaluation reports – and this had affected his attitude (Exhibit R2 page 877). A report prepared by a naval staff member at that time (Exhibit R2 Page 876) noted that the applicant had been unhappy and disinterested in the service in mid 1974 but was possibly settling down since his marriage. It was considered “tensions arise from the sailors own difficulties” because of financial problems due to some motor vehicle accidents and that the applicant had “difficulty in accepting discipline and authority and has no motivation to achieve promotion although his work attitudes seem to have improved recently.” The applicant’s commanding officer at the time did not recommend discharge, noting that the applicant’s disciplinary record in his previous posting was poor but had been satisfactory in that present posting (R2 page 874). At the time that the decision was made to not permit the applicant to leave the Navy a decision was made that there was to be a report on his suitability together with a psychologist’s report in six months time (R2 page 871). Such an assessment was never conducted at that time.
27. In 1978 the applicant was charged with wilfully disobeying orders on two occasions within a few days of each other - arising out of what the applicant said was unfair treatment and acting on wrong advice from a more senior person. At the time the applicant said that he was considerably distressed because of difficulties at home. As a result of these charges the applicant was referred for assessment by a psychologist (Mr Camac) who conducted a personality assessment known as a “16PF” test. In a report dated 5 December 1978 (part of Exhibit R3) Mr Camac reported that the applicant appeared genuine in his claim “…that he could not comprehend his current situation. His claims of “persecution” reflect an attempt to apply reasons to these misunderstood circumstances. There was no evidence of irrational cognitive processes or irrational behaviour.” The personality test and interview impression suggested that the applicant was emotionally stable and above average intelligence by service standards. He seemed to try to deal with his problems in a self sufficient and pragmatic way. There were fluctuations in the applicant’s attitudes towards continued naval service, with the primary influences being the perception of conflicting demands of service and family roles. The applicant remained interested in his work and seemed likely to perform at a satisfactory level.
28. At that time the applicant had exercised a right to elect to be discharged and that had been approved by the naval hierarchy, but the applicant subsequently withdrew that election and in mid-1981 the applicant re-enlisted for a further eight years of service. In November 1988 the applicant decided not to re-engage in the Navy. He stated in a letter to his Commanding Officer that because of the basis of his employment he could not be guaranteed employment in the Navy to retirement age of 55 years and he had the opportunity to take up civilian employment.
29. Performance Evaluation records for the applicant between 1975 and 1988 contained in Exhibit R2 reveal that for much of the time the assessment of the applicant was that his performance was acceptable for his rank with the occasional assessment (for the element of “compliance with orders/acceptance of authority”) being below a satisfactory performance. Over the years the evaluations were on occasions in the “superior” categories, usually in the “task execution” fields. On one occasion (November 1978) when the applicant scored a below satisfactory evaluation a superior officer noted that the applicant “…needs to learn more about the responsibilities of rank before a Yes recommendation is to be given for promotion” (R2 page 801).
30. The applicant said in his oral evidence that these regular performance evaluations often generated conflict between him and his superiors. He was always worried about assessments and always prepared to challenge assessments that he considered unfair – which involved him confronting superiors. On one occasion he tore up an assessment document in front of a superior and on another occasion he had taken his grievance to the captain of the ship – as a result of which the assessment was altered.
31. At the time of his discharge from the Navy in 1989 the applicant stated (T11 p33) that did not suffer from any injury or illness at that time and that he had not suffered from any disabilities during his service. The record of the applicant’s medical examination at that time recorded that the applicant’s “psychiatric assessment” had not been examined (T11 p36). The Medical Board recorded (T11 p38) that the applicant had the disability of “obesity”.
32. After leaving the Navy the applicant worked for almost two years with a firm known as Stanilite. He said that he resigned over a difference of opinion with his manager. Between February 1991 and December 1997 the applicant worked as a contractor and then a full time employee with a company involved in defence systems work but resigned because of a difference of opinion about performance evaluation. For a few months in 1998 the applicant worked as a part-owner of a service station but that proved not to be viable, he then worked for approximately six months in the second half of 1998 doing contract work with a previous employer in the defence systems area. Since January 1999 the applicant has been unemployed.
33. The applicant said that his knowledge of his expert field is now well out of date and he would be unable to work in that area. He receives a part-pension from the Department of Veterans Affairs for several conditions that relate to his naval service. In mid-2001 he had consulted a pension’s officer of the Returned Services League about getting an increase in his part-pension and the officer had raised with him the possibility of making a claim for compensation for his ongoing “mental stress” which he believed was due to the 1970s incident. The result was his compensation claim made in July 2001, as a consequence of which he was referred to Dr Kosky.
The Medical Evidence
34. In a report dated 1 February 2002 Dr Kosky reported that he had seen the applicant on three occasions. Dr Kosky recorded a history in which the applicant said he enjoyed his early period in the navy and did very well but subsequently, because of the assaults and the resulting anxiety, had gone from a “gung-ho apprentice to a ratbag”. He recorded episodes of feeling nervous and fearful with resulting rebelliousness and resentment and lack of trust in authority of his officers. He said he suffered a loss of confidence in himself and was continually angry, short tempered, easily frustrated and impatient, and that these symptoms had persisted since then and they now affected his capacity for work. The applicant drank alcohol excessively, both during and after his naval service, and as a result had become obese.
35. Dr Kosky described the applicant’s mental state as being “primarily depressed” but that he became “tense and anxious when he talks about his assault in 1970… the main finding is one of preoccupation with the events of 1970, of continuing anguish, anger and some degree of self-blame.” Dr Kosky found that the applicant suffered from GAD with some features of depression and that the GAD was characterised by “…excessive worry and concern about the events of 1970, an inability to control these worries which have been going on now for considerable periods of time and the feeling of being keyed-up, on edge, irritable, easily frustrated with difficulty controlling anger in certain situations of conflict. [The applicant] is tense, drinks excessively in an attempt to relax and has difficulty in his inter-personal relationships. This condition seems to have impacted on his life in general and his occupation in particular.” Dr Kosky thought that the GAD would continue in its present form for the foreseeable future but he noted that the applicant had not had adequate treatment – but even with treatment he thought the applicant would continue to suffer from GAD and still be unable to handle stressful inter-personal relationships. He thought the applicant could work 20 hours a week in an appropriate occupation.
36. Despite having Dr Kosky’s report the decision maker of 19 March 2002 who rejected the applicant’s claim for compensation made no reference to it when stating why the claim was rejected. The respondent subsequently arranged for the applicant to see Dr Proud, who reported in December 2002 (T47). Dr Proud reported that the applicant had given a history of having been a “chronic worrier since he was bastardised in the Navy but upon closer questioning admitted that much of his worry had to do with economic security. For example, in the three months after leaving the navy when he was on paid long service leave he did not worry and it is only recently with no work and financial pressures that his worrying has become quite severe. Whilst working full time for Transfield and Stanlilite he said he did not have many worries.” Dr Proud recorded the applicant as being anxious about his financial position and being frustrated about his inability to obtain work and that he regretted leaving Transfield and, in some ways, regretted leaving the Navy. He said that he had no nightmares relating to the incidents during the Navy and had no flashbacks to that time, but he “ruminates about the events in the Navy, believing that they had significantly “damaged my life”. By that time Dr Proud recorded that the applicant drank “a small amount of alcohol”.
37. Dr Proud summarised his assessment of the applicant as being a man who “… suffered one year of ridicule and humiliation by his primary school peers after he sustained facial scaring from a vicious dog attack when he was 9 years of age. This may have predisposed him to becoming sensitised to experiences of “ostracism and shaming by colleagues”, such as occurred when he was in his electronics apprenticeships in the early days of his Navy service. A perception on his part that he was not adequately protected by his naval superiors certainly led to an attitude on the part of [the applicant] that he was maltreated during his time in the Navy. He believes that the period of bastardisation in the navy has affected him and dates a long history of anxiety on his part and a tendency to worry over small things, to that bastardisation.”
38. Dr Proud said that he had agreed with Dr Kosky’s opinion that the applicant “was suffering from a GAD that arose after he experienced bastardisation in the Navy”, but it seemed to Dr Proud that financial issues since 1998 were the current cause of the applicant’s worries. Dr Proud thought that the applicant appeared to have functioned well both occupationally and interpersonally with little evidence of anxiety. He thought that the applicant’s “…anxiety always seems to have been precipitated by financial concerns whenever he left the job. He appears to have trouble sustaining jobs, often getting into conflict with management, both in his times in the naval service and also when he left the navy and was working in the private sector. There may be some contribution towards his rebellious streak as a result of his time in the Navy but this may also represent a pre-morbid personality, perhaps influenced by his primary school experiences of shame and humiliation.”
39. Dr Proud thought that financial concerns were the stressor for the development of the disorder and there was less evidence that he suffered the disorder over the course of his lifetime because he appeared to have functioned well in a number of jobs and for a considerable period of time without any anxiety. His periods in the navy and private employment appeared to have been characterised by conflict. Dr Proud thought that the applicant’s GAD was probably not the result of his time in the Navy and that he probably would have developed the GAD whether or not he had been in the Navy and subjected to bastardisation. He thought that the naval employment contributed less than ten percent to the applicant’s contraction of the GAD and that this employment had been a “minor” contribution to the contraction of the disease. Dr Proud thought that the GAD resulted from financial concerns and an inability to gain employment and that these were related to some extent to his choice to leave the Navy and his private employment subsequently. Those decisions appeared to have been influenced by the applicant’s rebellious attitude towards management, which may have derived in part from his experiences of bastardisation in the Navy but there was probably also a contribution from his pre-morbid personality. Accordingly there was a stronger link between the applicant’s naval experiences and his rebellious attitude to superiors than there was between his naval experience and any anxiety from which he was suffering.
40. Dr Proud considered that “from a purely psychiatric point of view, [the applicant] is fully able to perform his pre-injury duties as an electronic technician.” He thought the applicant might benefit from an antidepressant medication, but the best treatment would be “…financial security, either by gaining paid employment or by receiving financial assistance through any other methods.”
41. During 2003 the applicant was referred to Dr Kemp for the management of his GAD. In a report dated 25 September 2003 (Exhibit A1) Dr Kemp confirmed the applicant was suffering from GAD with the probable onset of this in 1970 and the probable cause related to the assaults in 1970. Dr Kemp thought there had been periods when the symptoms of the applicant’s GAD had not been particularly prominent and other periods when they had been relatively disabling and had resulted in impairment in social and occupational functioning and significant distress. The pattern of symptoms over the years that the applicant exhibited had included restlessness, and being keyed up and on edge, difficulties concentrating, irritability, muscle tension and sleep disturbance. Dr Kemp identified that the applicant’s excessive anxiety and worry had occurred for more than a six month period and had involved a number of events and activities, including over time the assaults in the Navy, his occupational functioning, financial matters, family matters and concerns regard alcohol consumption, and difficulties controlling his angry outbursts.
42. Dr Kemp thought that Dr Proud’s references to the “ridicule and humiliation” experienced by the applicant when he was 9 years old was unlikely to be a significant factor. He noted that the applicant’s sister, (to whom Dr Kemp had spoken) had down played the facial scarring of the applicant and of any ridicule by his primary school peers. Dr Kemp also noted that the Naval psychologist who had interviewed the applicant in 1969 and had noted his appearance as being that of a “freckled faced kid” seemed to indicate that this interviewer had not noticed any significant degree of disfiguring facial scarring.
43. Dr Kemp also drew attention in that report to what he considered to be an inconsistency between Dr Proud’s statement that the applicant had functioned well occupationally and interpersonally with little evidence of anxiety - but had then gone on to state that the applicant had had trouble sustaining jobs, often getting into conflict with management.
44. Dr Kemp also noted that the diagnostic criteria for GAD involve excessive anxiety and worry about a number of events and activities and that the nature of the events and activities that are worried about may change from time to time. The disorder itself is characterised by excessive predisposition to worry. Dr Kemp thought that once the predisposition to worry excessively had been triggered so as to initiate GAD, the predisposition through life might lead the sufferer to worry about a variety of things that would not apparently be related to the initiating event or problem. Accordingly, whilst it is reasonable to point out that the applicant’s worries over time have consisted not only of his worries of assault but that he also worries about his functioning at work, his irritability, his relationships, his alcohol abuse, his disagreements with his employers and his financial concerns – but it is not logical to assert that because he is worried about some theme at the present time that is unrelated to the initiating events of his GAD that the GAD was not precipitated by the events of 1970.
45. Dr Kemp also drew attention to the fact that the applicant had a record of seeking medical attention for tension headaches as referred to above. He said that the significance of these presentations is that one of the frequent presenting symptoms of GAD is muscle tension and that it is well known that muscle tension associated with neck and scalp muscles can cause headaches.
46. Finally, Dr Kemp noted the deterioration in the applicant’s academic performance and his conduct and discipline after the assaults. Dr Kemp thought it would be a reasonable hypothesis that irritability and poor concentration, which are symptoms of GAD, could have led to the deterioration in the applicant’s academic results and disciplinary record during 1970/71.
47. In a report dated 28 January 2004 (Exhibit A2) Dr Kemp said that the applicants GAD is permanent but that with treatment he may be ale to do some work, but even with optimum treatment the applicant would not be able to do more than 20 hours per week.
48. In his oral evidence Dr Proud said that the worries associated with GAD may or may not relate to events in a person’s past and that if an event such as an assault had caused a person little concern at the time then this would minimise any impact the event might have at a later time. However, it was possible that a person who was assaulted could be more traumatised than they actually realise at the time. Dr Proud thought that given the applicant’s employment history over a period of about 30 years that, occupationally, the applicant appeared to be functioning quite well and the psychological report conducted in 1978 suggested that he was performing adequately internally. Any problem that the applicant may have had with authority was a personality orientation rather than a psychiatric condition or a personality disorder. An orientation does not fall within any category of disorder.
49. Dr Proud acknowledged that the reference to humiliation for one year when the applicant was a child was an error because his contemporaneous notes referred to the applicant moving school after six months.
50. Dr Proud said that at the time of his examination of the applicant he was not aware of the history of headaches between 1973 and 1978. This may have made a difference to his attitude and he certainly would have explored the significance of it because the presence of headaches might indicate stress, tension and anxiety at the time.
51. Dr Proud drew a distinction between the “content” of the applicant’s worries and the “cause” of them. He did not disagree that the applicant suffered from GAD at various times. The core of his views was that the applicant was anxious and worried only when he had employment and financial insecurity, and that between those periods he was functioning quite well. He did not believe that the 1970 assaults were the precipitating cause of the applicant’s GAD because his periods of worry were always linked to financial insecurity. The situation might have been different if there was clear evidence that the applicant had been anxious most of the time. If the bastardisation that the applicant experienced had left some kind of permanent scar then Dr Proud would have expected to see recurring worries over the years and other signs, such as the drop off of school performance and conduct and signs of irritability and anxiety. These could be evidence of the effects of trauma (such as the 1970 assault) or might be triggered by his experiences as a primary school student.
52. Dr Proud said that he was not familiar with the PF16 personality test but thought that any interview of 20 or 30 minutes was far too little to draw any type of conclusions about the applicant’s mental state in 1978.
53. Dr Proud said that the evidence that the applicant had been aggressive towards his family members after the events was significant. Anxiety disorders were not well understood in the 1970s and the signs may have been missed by the practitioners concerned. He had no doubt that the assault on the applicant in 1970 was traumatic and it may have had a greater impact on the applicant than he (i.e. the applicant) believed. A person who suffered from GAD would have uncontrolled worrying about whatever the issue was at any particular time and the person’s resilience would be lowered. Sometimes this can involve people becoming confrontational but for others there might be nervousness about confronting senior people. The fact that the applicant did not refer in his letter seeking discharge from the Navy in 1975 to the bastardisation meant that there was no strong evidence of him being anxious about that particular incident at that time. The issues that were referred to in that letter involving discipline, naval lifestyle and family issues are all issues that could precipitate anxiety disorders.
54. In his oral evidence Dr Kemp said that although the time Dr Proud had spent with the applicant (45 to 60 minutes) was probably sufficient to enable a diagnosis, his experience was that the more time a practitioner can spend with a patient and the greater the degree of collateral evidence that is available from other sources, the better one can make an assessment regarding causation of a condition. Dr Kemp said that he had seen the applicant four times before September 2003 and four more times since then.
55. So far as the applicant’s headaches were concerned, Dr Kemp considered it well accepted that tension headaches indicated anxiety as did the deterioration of the applicant’s academic results and conduct. They indicate an impairment of occupational functionality and indicate anxiety is present. An inability to sleep also is a recognised symptom of GAD.
56. Dr Kemp said that prior to Dr Kosky’s diagnosis in January/February 2002 the applicant would not have known that he had GAD. He would not have necessarily connected his symptoms to that condition without the assistance of a psychiatrist.
57. In relation to the date of onset of the applicant’s GAD Dr Kemp said that it was sometime after July 1970. It was well recognised that something like an assault can precipitate GAD and Dr Kemp’s assessment was that the assault was sufficiently serious a stressor to bring on GAD although it might be different if there was clear evidence that the applicant had not been particularly affected by the assault. Where a stressor such as an assault causes the onset of GAD then one would expect to see clinical signs of the presence of GAD within a couple of years. There needs to be a temporal relationship of the symptoms appearing within a couple of years.
58. Dr Kemp repeated his assessment that it is not necessary that the ongoing worries or anxiety always be about the precipitating event. The worry can be about a number of things and the focus can move on to other factors over time – such as marriage, financial matters etc. The fact that the applicant said (in T13) that the direct effects of the assault had subsided to anger by the time he finished his apprenticeship training did not necessarily mean that he had stopped worrying about the effects of the incident. Dr Kemp thought the applicant was making the point that he was not worrying specifically about the incident by the time the training finished, but it was not possible to say that he had stopped worrying about it completely. Dr Kemp was of the opinion that it was 90 percent probable that the applicant’s GAD related to the assaults but he might reduce that assessment to something like 85 percent if it could be demonstrated that the applicant was not worried about the assault at later times.
59. Dr Kemp did not believe that the applicant’s letter requesting discharge from the Navy in 1975 or the assessment of the psychologist in 1978 altered his assessment of the situation. He thought that the personality testing was one relating to personality functioning rather than trying to identify psychiatric disorders. Even if the 16PF tested for anxiety and showed no finding of anxiety, this did not mean that the person did not have GAD at the time. GAD diagnosis is a relatively modern thing and there can be periods when a person does not show major symptoms of it. A person with GAD may function quite adequately at times but may be impaired at other times. Any impairment can be mild or severe. Dr Kemp considered that the applicant’s GAD had not been precipitated by his inability to find work in the period when his GAD was diagnosed.
60. In relation to the applicant’s work performance in the Navy over the years, Dr Kemp said that it was possible that people can have a poor perception of their own performance. Whereas an average person adapts to criticism of work performance, a person with GAD is more likely to react in a mal-adaptive way and react poorly to performance evaluations that do not accord with the person’s perception. He thought that the fact that applicant had not succeeded in attaining the rank of Warrant Officer, when most of his contemporaries did, might be explained by the fact that his overall work performance had not been as good as the applicant apparently thought that it was.
61. Mr Camac was a psychologist employed in the Navy between April 1969 and 2002. He performed the 16PF assessment and interview of the applicant in December 1978 although he had no recollection of the applicant.
62. Mr Camac said in a statement (Exhibit R5) that, in relation to the applicant’s contentions that he had a persisting worry and irritability as a consequence of bastardisation in 1970, the most relevant factors in the 16PF test were Factor C (emotional instability versus maturity), Factor L (trustful versus suspecting), Factor O (confident versus insecure), and Factor Q4 (stable versus tense). For those factors the applicant gained scores that were in the average range for Factors C, L and Q4 and a below average score for Factor O – which indicated confidence rather than insecurity. These results were, in Mr Camac’s opinion, inconsistent with what one might have expected if the applicant’s contentions were correct. The results of the test plus the information obtained during the interview led to a conclusion at the time that the applicant was emotionally stable and that the primary explanation for his behaviour at the time was conflict regarding the resolution of competing demands from the Navy and his family.
63. In his oral evidence Mr Camac said that the 16PF test was designed for use mainly in the recruitment process and it was not primarily designed for diagnostic purposes. However, if the test had raised concerns about a person’s personality status then the person might be referred to a medical officer or to a psychiatrist – or in extreme cases discharge might be recommended.
64. Mr Camac said that the tests of the applicant in 1978 had been prompted by the disciplinary problems that the applicant had at the time. If he had known about the earlier bastardisation episodes he may have asked questions to find out if it was linked to the applicant’s then current problems. He did not know if any research had been done to test whether there was any correlation between the results of 16PF testing and the presence of anxiety disorders. The 16PF’s primary task was to look at a person’s adjustment and suitability for naval service. It was useful for identifying issues if the results for an individual were outside the average range. The results of the test did not show that the applicant required any further referral or testing. The only conclusion that he could draw from the results of the applicant’s test in 1978 was that there was nothing to indicate a need for further scrutiny or the likelihood of problems for future naval service. In the 1970s there was no focus in the Navy on anxiety disorders but there was a focus on whether a person had problems. It appeared from the papers that Mr Camac had seen concerning the applicant that the emphasis was on his family situation. In his position in the Navy he saw the conflict between family and service frequently and there was an element within the naval hierarchy that thought family problems were for the individual to sort out and were not the Navy’s concern. Mr Camac agreed that there was a cultural issue within the Navy at the time. The culture of not complaining had been observed by him and he was aware that the Navy had tried to address it at the time - but he thought that naval culture would to some extent discourage a person from talking about their worries. Nevertheless, in his experience people did talk if they were given the opportunity to do so. Although he could not remember the interview with the applicant it was conceivable that the conversation did not look back into history very far, but he did expect that he would have asked the applicant “if there was anything else that he wanted to talk about,” which would have given some opportunity to the applicant.
65. The fact that the applicant had gone on to complete 20 years of naval service suggested to Mr Camac that a simpler interpretation of what was happening in 1978 was more likely to be correct than a more complex explanation.
66. Mr Paul Ontong is the Director of Appeals for the Respondent. In an affidavit dated 13 May 2004 (Exhibit R7), Mr Ontong set out his reasons for forming the view that the respondent was prejudiced by the applicant’s failure to lodge a claim between 1970 and 2001. These included an inability to investigate the circumstances surrounding the alleged psychiatric condition, the absence of reports of injury or illness relevant to the condition, and the inability now to find witnesses to corroborate or contradict the applicant’s evidence regarding his condition.
67. Mr Ontong said that in the 1970s any injury or illness suffered by a member of the Navy would be reported to the Aid Post. After an event such as an assault the Navy would treat the physical injuries but thereafter would treat mental problems only if the sailor reported them. If there was a reported assault there would be an investigation of the circumstances with a view to punishment of the offenders.
CONSIDERATION
68. As noted at paras 8 to 12 above, although the applicant’s claim is made under the 1988 Act the transitional provisions of that Act are such that it is necessary for the applicant to establish an entitlement to compensation under earlier legislation. The assault incident, which the applicant asserts was the start of his problems, occurred whilst the 1930 Act was in operation, but shortly thereafter the 1971 Act commenced. The first question to determine is, having regard to the provisions of section 7(4) of the 1988 Act, when the applicant sustained an injury, being the disease of GAD. It is apparent that the applicant did not seek medical treatment for that specific disease until 2001. Although, for reasons that I will develop below, the treatment that the applicant sought in the early to mid 1970s for headaches is significant in the present case, I do not consider that it can be said that the applicant sought medical treatment for GAD at that time. He was not aware of the disease and I accept his evidence that he did not believe at that time that he had anything wrong with him, other than headaches. The next issue is when did the GAD first result in the applicant’s incapacity for work, or his impairment for the purposes of section 7(4) (b).
69. It was no part of the applicant’s case that the consequences of the 1970 assault resulted in any incapacity for work during the 1970s or 1980s. An impairment is defined in section 4 of the 1988 Act as meaning “….the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function”.
70. Mr Lenczner for the respondent contended that the applicant must have been impaired prior to 1 September 1971 and on that basis the 1930 Act would be applicable to the present case. However, Mr Lenczner pointed out, quite correctly, that the applicant’s disciplinary issues only appeared to have emerged in 1972 (R2 page 700) and if that was the case then it was probable that the 1971 Act would be applicable.
71. I accept the applicant’s evidence that the immediate consequence of the assault in mid-1970 was great fear at the time followed by a continuing fear of retribution from the offenders for a period – but that this settled down to a feeling of anger and frustration about the lack of protection by the Navy and the lenient treatment of the offenders. I am satisfied that sometime after the assaults the applicant began to suffer from headaches – the first specific reference to which is in April 1973 when there is a reference to headaches approximately every fortnight (T page 184). However, a note was made in November 1975 (T p74) that the applicant complained of headaches of 5 years duration, which suggests an onset may have been sometime prior to 1973. It is not entirely clear when the applicant’s misconduct commenced although he said in his evidence that he had started drinking sometime soon after the assaults and gave evidence of being drunk on the first night after the offenders were arrested. The evidence suggests that the applicant’s work and disciplinary performance started to deteriorate soon after the assaults, and in particular he started to drink excessively, but I consider that an impairment - in the sense of suffering headaches to the extent of seeking medical attention and a deterioration in his conduct to the extent that he became the subject of disciplinary charges - would not have been established until sometime in 1972 and continued thereafter. Accordingly, I consider that any impairment that the applicant may have suffered did not occur until sometime in 1972 or thereafter and, on that basis, he must be taken to have suffered the disease for the purposes of section 7(4) at that time. On this basis I conclude that the 1930 Act is not applicable and the applicant’s entitlement to compensation must be assessed having regard to the 1971 Act.
72. The next question that must be considered is whether or not the applicant’s claim must fail because of the contention that he failed to give notice of his injury and to make a claim within the times specified in the 1971 Act.
73. Section 53 of the 1971 Act deals with the giving of notice of injury or disease. In the case of a disease, s 53(2) relevantly provides that the 1971 Act does not apply in relation to a disease contracted by an employee
“…unless notice in writing of the contraction of the disease…was served, as prescribed, on the Commonwealth –
(a) as soon as practicable after the employee became aware of the contraction of the disease…;
…”
74. Section 53 (4) relevantly provides that if a notice that purports to be a notice of contraction of the disease has been served but failed to comply with the specified time requirements, then the notice shall be deemed to have been given in accordance with the section if:
“… the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause”.
75. I accept the evidence of Dr Kemp (Exhibit A2) that the applicant would not have been aware that he was suffering from GAD until his psychiatric problem was first diagnosed by Dr Kosky in January/February 2002. By that time, of course, the applicant had already lodged his claim for compensation, describing his illness as “mental stress”. That claim had been submitted based upon advice given to him by an RSL pensions officer.
76. It is well established that a claim form lodged by a person seeking compensation can also serve as a notice of injury or disease; see Comcare v Luck [1999] FCA 100 at [61] per French J. On the evidence before me I am satisfied that the applicant gave notice of the contraction of the disease prior to him being advised in an authoritative way of the precise nature of his problem and the identity of the disease. I am satisfied that as a result of his conversation with the RSL officer the applicant became aware for the first time that he may have suffered from a condition that was compensable and that he gave notice of the contraction of that disease as soon as practicable after becoming so aware. Accordingly, I am satisfied that the applicant complied with section 53(2) of the 1971 Act as regards the giving of notice. However, even if that were not the case, I consider that any failure to give notice was due to the applicant’s ignorance about the nature of his condition and the possible eligibility for compensation. On that basis the notice should be deemed to have been given in accordance with the requirements of section 53. Having arrived at those conclusions it is not necessary for me to assess whether the respondent or the Commonwealth was prejudiced by the passage of time between 1970 and the giving of notice.
77. Section 54 of the 1971 Act relevantly provides that compensation will not be payable to an employee unless a claim in writing for the compensation was served within the prescribed period, which, in the case of a contracted disease, is “…the period of six months commencing on the day on which the claimant became aware of the contraction of the disease…”.
78. Section 54(6) is in similar terms to section 53(4) and makes similar provision for the deeming of a claim to have been served in accordance with section 54. For the reasons given above in relation to section 53 I am satisfied that the applicant did not become aware that he had contracted GAD until he had the benefit of advice from Dr Kosky - but that he had already made a claim prior to that time. On the basis that the applicant first became aware that he had contracted a disease (in the sense that he became aware of the various factors concerning his disease and its possible compensability) when he spoke to the RSL pension officer, I am satisfied that the claim was made within the six months period commencing at that time. However, for similar reasons as were given above in relation to section 53(4), I am also satisfied that any failure to comply with the time requirements were due to the applicant’s ignorance. Accordingly, I am satisfied that the requirements of section 54 have been complied with and the applicant is not disentitled to compensation by the operation of that section.
79. The next and most significant issue in these proceedings is the question of whether the applicant’s admitted GAD is compensable for the purposes of the 1971 Act.
80. Section 27(1) of the 1971 Act relevantly provides that if personal injury arising out of or in the course of the employment of an employee is caused to the employee then, subject to the Act, the Commonwealth is liable to pay compensation in respect of that injury in accordance with the Act. An “injury” is defined in section 5(1) to mean any physical or mental injury but, subject to section 29, does not include a disease.
81. Section 29 of the 1971 Act provides for compensation in certain circumstances in respect of a disease. Where an employee contracts a disease and “…any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease…, whether or not the disease was contracted … in the course of that employment”, then, if the total or partial incapacity for work of the employee results from the disease, the contraction of the disease shall be deemed to be a personal injury to the employee arising out of the employment of the employee by the Commonwealth.
82. In s 5(1) the word “disease” is defined to mean “…any physical of mental ailment, disorder, defect or morbid condition whether of sudden onset or gradual development”.
83. There being no dispute that at the time of his claim the applicant suffered from the disease of GAD, the issues for determination are whether or not any employment of the applicant by the Commonwealth was a contributing factor to the contraction of that disease and whether the applicant suffered a total or partial incapacity for work as a result of the disease.
84. In relation to whether employment will be “a contributing factor” to the contraction of the disease, Davies J said in Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42 at page 43 that:
“It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate, or effective cause of the disease or of its development. In a case where a number of factors contribute to the contraction of the disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker’s employment. See Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 at 641-643 per Windeyer J and Favelle Mort Limited v Murray (1976) 133 CLR 580 at 598 per Mason J.”
85. In Treloar v Australian Telecommunication Commission (1990) 26 FCR 316, 97 ALR 321, 12 AAR 535 the Full Federal Court said at [21] in relation to section 29 of the 1971 Act that:
“…once it is established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic or condition in which the work was to be performed” and that such exposure was in truth a “contributing factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. … In all cases the question is whether there has been a “contribution”. … All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not “contribute”.
86. At [22] the Full Court said that
“…the section is not brought into play unless it is established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
87. In the present case there is no dispute that the applicant was assaulted in the middle of 1970. I accept his evidence that the period over which the assaults occurred was an extremely frightening and traumatic time for a young 17 year old and that the circumstances were aggravated by the features of the culture of the Navy that frowned upon complaining. I accept also that the applicant was very upset about what he perceived to be the lenient treatment of the offenders and that it turned into a feeling of anger and frustration towards the Navy. I consider the applicant to be a witness of considerable credit and I accept his evidence that thereafter his conduct and performance as an apprentice began to decline and that he began drinking to excess and was disciplined for misconduct.
88. I consider as important that sometime relatively soon after the assaults occurred the applicant began to suffer from tension headaches and these continued for some years. Insofar as there are differences of opinion regarding the causation of the applicant’s GAD - between the events of the 1970s and some later events, I prefer the views of Dr Kosky and Dr Kemp. Both of those practitioners saw the applicant on a number of occasions and spent considerably more time with him than did Dr Proud. I am satisfied on the evidence that during the 1970s and 80s whilst he was employed in the Navy the applicant had a generally satisfactory career, but that there were many occasions when he suffered from anxiety and worry that was excessive and manifested itself in a negative attitude to authority and discipline. I do not accept the contention of the respondent that the applicant’s problems were due to a rebellious attitude that was present prior to joining the Navy, nor do I accept that the reduction in the applicant’s performance as an apprentice could be explained by the fact that he was, in the early years as an apprentice, repeating work that he had already done at school. The assessments of the applicant made in 1969 and 1978 were that he was above average intelligence – at least by service standards, and his initial performance as an apprentice supported that view to the extent that the applicant was identified as having officer potential. The fact that the applicant was not able to realise his full potential – as evidenced by the failure to obtain Warrant Officer status in his 20 years of service, as well as his disciplinary and performance evaluation problems, are indicative that his occupational functioning was impaired.
89. I am satisfied the applicant’s behaviour from about 1972 was to a substantial degree a consequence of the assaults that he suffered in 1970 and indicative of an onset of GAD by about 1972. I have no doubt that, consistent with the nature of GAD, the focus of the applicant’s worries changed from time to time as did the severity of his symptoms. I accept Dr Kemp’s evidence that this is a feature of GAD. I am satisfied that at various times the applicant did worry about matters that were not directly related to the 1970 assaults, including such matters as financial problems and the reconciliation of service and family life. Nevertheless, I am satisfied that the applicant contracted GAD in the early 1970s and that, on the probabilities, the assaults were the precipitating event. I accept the opinions of Dr Kosky and Dr Kemp that there is a causal link between the contraction of the disease and the assaults of 1970. I do not consider that that causal connection is, on the evidence in this case, left in the area of possibility or conjecture. The assaults in 1970 are, in my opinion, part of the cause of the applicant’s GAD and the contribution that was made by them was a substantial one, even though, as the comments from Treloar and Welsford set out above indicate, it matters not that the contribution be large or small once the causal link is established.
90. The next question to determine is whether, under s29 of the 1971, the applicant’s GAD resulted in a total or partial incapacity for work. Once again I prefer the evidence of Drs Kosky and Kemp in this regard. I accept Dr Kemp’s evidence that the applicant’s work capacity deteriorated from 1998 and that, although there has since been some improvement, the applicant has a capacity for work now of only 20 hours per week in a suitably low-stress environment. I am satisfied that th applicant’s GAD has resulted in at least a partial incapacity for work since 1998 and continuing to the present time.
91. For the reasons set out above I am satisfied that, for the purposes of section 29 of the 1971 Act, the applicant’s employment by the Commonwealth was a contributing factor to the contraction of his GAD and that an incapacity for work resulted from the GAD. Accordingly, the contraction of that disease is deemed to be a personal injury to the applicant arising out of his employment and the applicant is entitled to compensation in accordance with section 27 of the 1971 Act. The applicant will, therefore, be entitled to compensation under the 1988 Act.
92. The only decision that has been made by the respondent in respect of the applicant’s claim thus far has been to deny liability to pay compensation. The appropriate decision in the present proceedings is, therefore, to set aside the reviewable decision made on 29 January 2003 and to remit the matter to the respondent for reconsideration with a direction that the applicant is entitled to compensation under the 1971 and 1988 Acts so that the respondent can determine the elements of compensation to which the applicant is entitled.
I certify that the 92 preceding paragraphs are a true copy of the reasons for the decision herein of M J Allen, Member
Signed: ...................(sgd EM Jordan)...........................
AssociateDate/s of Hearing 18 May 2004, 19 May 2004, 29 July 2004
Date of Decision 29 June 2005
Advocate for the Applicant Mr Bob Wood
Royal Australian Regiment Association
Counsel for the Respondent Mr Joe Lenczner
Solicitor for the Respondent Ms Ingrid McCormick
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