Dewhurst and Defence Force Retirement and Death Benefits Authorit Y
[2004] AATA 56
•23 January 2004
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DECISION AND REASONS FOR DECISION [2004] AATA 56
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/259
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | TERENCE PAUL DEWHURST | ||
Applicant
| And | DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY |
Respondent
DECISION
Tribunal The Hon CR Wright QC (Deputy President)
Date 23 January 2004
Place Brisbane
| Decision | The Tribunal: (a) confirms paragraphs (a) and (b) of the Authority’s decision as set forth in paragraph 4 of these reasons; and (b) sets aside paragraph (c) of the Authority’s decision and in lieu thereof the following determination is made: “For the purposes of section 30 of the Act the applicant Terence Paul Dewhurst be classified as having 50% incapacity in relation to civil employment (Class B) with effect from 1 April 2002”. |
.. ....….(Sgd)..........
The Hon CR Wright QC
Deputy President
CATCHWORDS
DEFENCE FORCE RETIREMENT BENEFITS – degree of incapacity of applicant – applicant’s capacity to reasonably undertake employment in various categories of work – extent of disabilities and incapacities causing retirement – effect of degenerative lumbar disc disease, osteoarthritis of right knee and post traumatic stress disorder
Defence Force Retirement and Death Benefits Act 1975 s 30
Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 79
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286
Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
REASONS FOR DECISION
| 23 January 2004 | The Hon CR Wright QC (Deputy President) |
The Application for Review
The applicant enlisted in the Australian Army on 7 July 1981 and became a member of the superannuation scheme established by the Defence Force Retirement and Death Benefits Act 1975 (“the DFRDB Act”).
The applicant, now aged 41 years, was discharged from the Army as medically unfit for service on 31 March 2002. He held the rank of Major at the time of his discharge.
At that time, the applicants’ retirement impairment was described as “degenerative disc disease, right knee pain and depression”. On 7 April 2002, the applicant was classified under section 30(2) of the DFRDB Act as having a 40% Class B incapacity in relation to civil employment with effect from 1 April 2002.
On 3 June 2002, the applicant requested reconsideration of this classification and, on 14 February 2003, the respondent Authority decided:
(a)to determine, pursuant to section 30(2)(a) and (b) of the DFRDB Act, that the relevant kinds of civil employment which a person of the applicant’s vocational, trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) was security officer, outdoor adventure leader and human resources manager;
(b)to determine that degenerative lumbar disc disease, osteoarthritis of the right knee, and post traumatic stress disorder constituted the retirement impairment; and
(c)to confirm the decision that the applicant be classified 40% Class B with effect from 1 April 2002, the day following his discharge.
The Authority published an eleven page statement of reasons for its decision in which it reviewed at length the provision of the DFRDB Act, the applicant’s history of employment and Army service and relevant medical opinions.
The applicant lodged an application to review the Authority’s determination on 17 March 2003. The application for review consisted essentially of specific criticisms of the Authority’s assessment of the material before it. These criticisms were relied on by the applicant during the AAT hearing which took place before me in Townsville on 11 November 2003.
The applicant, who was unrepresented at the hearing, did not file a Statement of Issues or a Statement of Facts and Contentions, either of which may have been helpful in assessing his case and defining the disputed issues. Nonetheless it was plain enough, as the hearing progressed, that his central complaint was that, by reason of his retirement, incapacities should have been assessed by the Authority as 60% or more incapacitated, Class A, under section 30(1) of the DFRDB Act, and thus he would be entitled to 76.5% of the annual rate of invalidity pay provided for in section 31(2), rather than 38.25% of the annual rate that a 40% class B classification entitled him to.
At the hearing the respondent was represented by Mr Dubé. Oral evidence was taken on affirmation by telephone from Dr Michael Likely and Dr Michael Robertson. The applicant gave sworn evidence. A number of documentary exhibits were also taken into evidence. These will be identified as the need arises during the following discussion of issues. The section 37 documents became Exhibit 2, and individual documents forming part of that exhibit will be referred to by their individual document and page numbers.
I have read and considered the applicant’s affidavit (Exhibit 1) in conjunction with his oral evidence in reaching the conclusions stated in these reasons.
Legislation
In a letter sent to the applicant by the Manager of Military Invalidity Assessment on 26 April 2002 (T84/143-144), the point was made by the author that:
“because the invalidity benefits payable under the DFRDB legislation reflect the fact that it is a superannuation scheme providing benefits for eligible invalidity retirees from the Defence Force, the basis of assessment … is quite different from the approach taken in assessments made under Repatriation, Compensation or Social Security Legislation.”
I mention this before referring to the specific provisions of the Act, because it seemed obvious to me that some of the issues and contentions being advanced by the applicant at the hearing, indicated that he was still failing to fully grasp this very important point of distinction between the benefits and classification process provided in the DFRDB Act, and other pieces of legislation providing monetary benefits for injury or incapacity.
Section 30 of the DFRDB Act is in the following terms (irrelevant provisions have been omitted):
“Classification in respect of incapacity
30(1)Where a member of the scheme, … is entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:
Percentage of Incapacity Class
60% or more A
30% or more but less than 60% B
Less than 30% C
…
(2)In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the member;
(b)the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c)the degree to which the physical or mental impairment of the member that caused the invalidity or physical or mental incapacity because of which he or she was retired has or had diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);
(d)such other matters (if any) as are prescribed for the purposes of this subsection…”
This section provides for the initial classification of a scheme member seeking invalidity benefits upon retirement. Section 34, (which does not directly arise in the present application for review), may be called in aid by a member who seeks a subsequent reclassification based on an increased incapacity at a later date. This may be a feature for the applicant to bear in mind in relation to the opinion expressed by Dr Robertson that, as at 18 November 2002, the applicant’s incapacity due to PTSD is “likely” to increase. What I am required to do in the present review is to determine whether or not the respondent’s assessment of the applicant’s incapacity at 40% as at the date of his discharge was correct.
The relevant issues which need to be considered under section 30 are as follows:
(a)What are the applicants’ vocational, trade, and professional skills, qualifications and experience;
(b)What are the kinds of civil employment which a person with such skills qualifications and experience might reasonably undertake; and
(c)To what degree has the physical and/or mental incapacity of the applicant which caused his retirement diminished his capacity to undertake such kinds of civil employment.
The only matters which may be taken into account in determining the degree of incapacity of the applicant are those specified in section 30. The Tribunal cannot take account of, for example, “the ageing process, a depressed labour market, a state of unemployment, the shortage of employment for those who might engage in a particular occupation, circumstances foreseeable only in the long term unless made appropriate, and prevention of continuance in non-civil employment” (Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 at 792).
It is not the actual securing of employment which must be considered but rather “what a hypothetical person with the relevant skills, qualifications and experience might ‘reasonably undertake’ …the statutory language …does not at all suggest that the absence of a particular licence, or the need for a particular refresher course would constitute a barrier” (Defence Force Retirement and Death Benefit Authority v House (1989) 91 ALR 286).
The fact that a member of the statutory scheme is actually working in a particular job after retirement may be a relevant factor to be considered in assessing the incapacity, but there may be cases where he is doing the work with such difficulty “that it is plain he has not any real capacity for it. The fact that he is in employment may be due to kindness of an employer, or of fellow employees or both, or because of his ability, at least for the time being, to mask his disabling condition” (Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156 per Shephard J at 160).
An assessment of the degree of diminution in the capacity of a scheme member to undertake the relevant kinds of civil employment is not to be approached as though “it were a mathematical calculation” (see Re Thomson and Defence Force Retirement and Death Benefit Authority (1987) 6 AAR 424 at 433 per Davies J).
The Issues
In the present case I do not understand the applicant to be challenging the Authority’s conclusion that a person with his skills, qualifications and experience might reasonably undertake civil employment as a security officer or outdoor adventure leader. Indeed the applicant himself suggested these two categories in his letter to the Manager, Military Invalidity Assessments on 26 February 2002 (T77/127).
In his report dated 25 March 2002 (T79/129-130), Dr Richard Gibberd stated that the applicant said he intended to obtain work in a “managerial position” when examined by the doctor on that day, but in the letter (T77/127) referred to in paragraph 17 above, the applicant suggests he lacks administrative skills and, in his notice to review (T1/3 referring to para 8 and 11 of the Authority’s determination), he disputes that he completed a diploma in personnel administration and says he has “done no work in Human Resource Management”.
It is noted that the applicant completed his secondary eduction in 1980 having completed Year 12. Prior to joining the Army the applicant worked as a prospector for three months and as a brickie’s labourer for three months. The applicant’s in-service experience had been in the infantry, undertaking outdoor activities, as an officer cadet and a commander. The courses completed by the applicant in-service include a shallow water diver’s course, a basic airborne rappelling course, a sports trainer’s course, a regiment officer advanced course, and an intermediate staff course. Prior to discharge, on 25 February 2002, the applicant commenced employment as a facilitator/trainer with the Queensland Police Service.
Having regard to the employment classifications listed in the Australian Standard Classification of Occupations (2nd Edition 1997), I entertain no doubt that the applicant by virtue of his skills, qualifications and experience prior to discharge might reasonably have undertaken civil employment as a security officer or outdoor adventure leader.
I am also satisfied, notwithstanding the applicant’s dispute as to his obtaining a personnel administration diploma, that his experience, rank and performance in the Army as exemplified by the documentary assessments of his abilities (Exhibit 5) and as reinforced by his articulate performance and obvious intelligence when in the witness box, make it appropriate for the occupation of human resource manager to be taken into account as a relevant “kind of civil employment” within the meaning of the Act.
I do not understand the applicant to contend that the incapacities which were taken into account as the basis for his retirement have been incorrectly defined by the Authority as:
(a) Degenerative lumbar disc disease;
(b) Osteoarthritis of the right knee; and(c) Post traumatic stress disorder (PTSD).
He was, however, at pains during the hearing to point out that he had also chronically abused alcohol while in the Army both as a consequence of the pervasive culture of excessive drinking in the Army and also, perhaps more importantly, as a reaction to (or as Dr Likely put in his reports “self medicated”) his PTSD.
The applicant also claims that he did what he could to conceal his excessive drinking from his superiors and, on occasions, deliberately provided false information about his drinking habits to examining doctors. Whatever the cause, chronic alcohol abuse was not taken into account as a contributing factor to his forced retirement on the basis of medical unfitness.
The applicant contends that had the full pattern and problem of his excessive drinking been taken into account as a barometer of his PTSD those psychiatric specialists examining him would have appreciated that the disorder was more disabling and incapacitating than they had concluded. Whilst I am prepared to accept that the applicant may have been reluctant to let his superiors become fully aware of the extent of his alcohol problems I am more doubtful of the applicant’s claim to have concealed relevant diagnostic material from examining doctors and I am not persuaded that, even if he had done so, it would have had a significant bearing on their opinions which, broadly speaking, were sympathetic to the applicant’s claims.
The History and Effect of the Three Relevant Incapacities
Degenerative Lumbar Disc Disease
The applicant first reported lower back pain in February 1985 after he sustained a bending/twisting injury and was treated with physiotherapy. He again reported back pain in March 1988 following a hit in the lower back region while playing sport which responded to physiotherapy. Back pain developed again following another sporting injury in 1990 which gradually got worse and radiated down his right leg. It slowly responded to physiotherapy.. He reported with recurrences of lower back pain in 1993 and May 1994. In February 1995, the applicant suffered a further exacerbation of his low back pain, and again in 1996. Following the development of left sided sciatica in 1998 and chronic back pain an x-ray in February 1999 showed a narrowing of the L4/5 disc. The applicant was referred to a neurosurgeon, Dr Guazzo, who was of the opinion that surgery was not indicated and diagnosed the condition as moderate lumbar spondylosis. The applicant was seen by Mr Gibberd, orthopaedic surgeon, on 25 March 2002 who diagnosed disc degenerative disease. Dr Stanley-Clarke, consultant orthopaedic surgeon, who saw the applicant on 26 November 2002 also diagnosed degenerative lumbar disc disease.
The applicant suggested in his notice to review that the opinion of Dr Guazzo that surgery was not indicated “had a lot to do with myself saying I will not have surgery”. This claim seems to be borne out by a note in the hospital record reproduced at T54/85 where there is an entry “NB. Does not want an operation under any circumstances – father died on table” (during?) “back operation – Discussed options”. During the course of his final address at the hearing the applicant contended that he is “up for a disc operation in 4 to 5 months”. If this is so, and I have no reason to doubt it, it seems to me that it may provide a basis for a future section 34 application but does not, at the moment, lead me to doubt the current medical opinions to the effect that such a surgical procedure was not necessary at the time of the applicant’s retirement.
Osteoarthritis of the Right Knee
In April 2000, the applicant injured his right knee at a PT session. The pain did not settle and he was diagnosed as having a soft degenerate medial meniscus which was removed in August 2000. The surgery was said to be successful and on review, on 4 September 2000, the applicant was considered to be able to return to full duties within a month or so. Dr Stanley-Clarke considered that the applicant had osteoarthritis of the right knee when he examined him in November 2002.
Post Traumatic Stress Disorder
When serving in Somalia in 1993 the applicant experienced a number of highly traumatic episodes, the worst, that is the most horrific of which, involved the slaughter of young children by Somalian bandits.
The development of PTSD symptoms thereafter and the effect of those symptoms upon the applicant’s subsequent Army service have been described in several medical reports from Drs Likely, Stephenson and Robertson, which are contained within Exhibit 2 and which were extensively and thoroughly considered by the Authority in its decision now under review.
The applicant first sought psychiatric help in 1997/98 when he experienced nightmares related to his period of duty in Somalia. Dr Likely advised him to reduce his alcohol intake and he was prescribed medication. He ceased this after several weeks and experienced no further symptoms until September 2001 when he consulted Dr Stephenson, community psychiatrist, and was again prescribed medication. Dr Likely, treating psychiatrist, advised on 28 March 2002, that the applicant was suffering from post traumatic stress disorder (PTSD). Dr Robertson, consultant psychiatrist, who examined the applicant for the purposes of the reconsideration also diagnosed post traumatic stress disorder, major depression and alcohol abuse.
When considering the reports of Drs Likely, Robertson and Stanley-Clarke, the Authority, in its discussion of the applicant’s capacity to undertake civil employment, noted that the doctors had recorded the applicant, when providing a medical history to them, as having stated “several matters” (which) “appear inconsistent with his employment record as described by Inspector MA Verrall in his report on behalf of the Queensland Police Service Academy dated 5 December 2002”.
These apparent inconsistencies were drawn to the attention of all three doctors by the Authority. However, they did not change the opinions which they had previously expressed as to the applicant’s incapacity, so the effect of their written opinions was unchanged.
In my opinion it is unnecessary to reproduce the medical reports contained within Exhibit 2 and referred to by the Authority in its decision. The salient parts of each report are reproduced in the written decision of the Authority in my opinion. However, as previously mentioned, both Dr Likely and Dr Robertson gave evidence at the Administrative Appeals Tribunal hearing in Townsville and it is therefore appropriate to refer to their evidence given on that occasion. Dr Likley’s attention was drawn to two further reports prepared by him in relation to the applicant and addressed to Dr R Keyes dated 15 January 1999 (Exhibit 6) and 4 March 1999 (Exhibit 4) respectively. In Exhibit 4, Dr Likely expressed the view that the applicant’s PTSD condition had “considerably improved from previously, in that he is no longer depressed, has tempered his alcohol intake markedly which is now within safe limits and his symptoms of post traumatic stress disorder are less distressing for him than previously”.. Dr Likely noted that the applicant had recently returned from an overseas training mission in Malaysia. When cross-examined by Counsel for the respondent, Dr Likely said that the applicant had “coped pretty well” in Malaysia but that he found subsequent operational service in East Timor more distressing. It was put to Dr Likely that if, at discharge from the Army, the applicant was drinking only four or five standard drinks four times per week and moved straight into his employment with the Police Service this would indicate a “moderate” capacity to cope. Dr Likely agreed. The “four to five standard drinks four times a week” was a reference to T74/116 but was inaccurately put to the witness by Counsel for the respondent, so the value of Dr Likely’s reply is limited. Dr Likely also said that since his last report of 28March 2002, he had been seeing the applicant about once per month. He said that overall the applicant’s PTSD symptoms were now more deeply ingrained but had fluctuated over the intervening period. In giving his evidence, Dr Robertson agreed with Counsel for the respondent that if the applicant’s future impairment from PTSD were to be left out of account in formulating the applicant’s degree of incapacity in his report of 18 November 2002, it would be appropriate to regard the applicant’s PTSD caused impairment as “moderate”.
It is, I think, a fair conclusion from the evidence of these two doctors (including their written reports) that, in relation to the PTSD component of the applicant’s disability as at 1 April 2002, it could properly be described as “moderate” in relation to the three categories of civil employment being considered.
“Small”, “Moderate” and “Large” are the degrees of incapacity prescribed for consideration by examining medical officers in form DM.43 and these descriptive terms are related on the form to the Class A, B and C percentages referred to in section 30 of the Act. The correlation between the descriptive terms and the percentages are clear enough but I doubt that the introduction of this additional comparative exercise into the assessment process is necessarily helpful or desirable. At all events “moderate” equates to “30% to 59%” according to the form and, it appears, according to the understanding of the reporting doctors.
Conclusion
In my judgment the applicant is now, and was at the relevant time, viz 1 April 2002, quite severely affected by PTSD from time to time. This, however, is a condition which fluctuates in its disabling effect and the symptoms may range from quiescent to acute on any given occasion. As already mentioned, it seems that the applicant’s drinking habits provide something of a barometer as to his condition during any given period of time. The fact that in the past he has attempted to conceal his excessive drinking from his superiors does not make the task of assessing his resultant degree of incapacity for civil employment any easier.
It is clear, I think, that the first two categories of potential employment, that is security officer and outdoor adventure leader, are more likely to be directly affected by the applicant’s physical injuries to the back and knee than the category of human resources manager, but I consider them to be within the scope of what a person with the applicant’s skills, qualifications and experience could reasonably undertake. I think therefore it is appropriate to assign a “moderate” incapacity to the applicant in respect of these categories, leaving aside for the moment the effect of PTSD. In this respect I find myself in general agreement with the approach of the Authority.
Insofar as the human resources manager category is concerned I think that, taking account solely of the applicant’s physical injuries, a “moderate” incapacity would also be justified in this case.
However, my task is to assess an overall percentage of disability in relation to civil employment, taking account of all three of the factors mentioned in accordance with section 30(2) of the Act. In my opinion, taking account of the debilitating, albeit fluctuating effects of the applicant’s chronic PTSD, in conjunction with his back and knee conditions, he should be assessed as 50% incapacitated for civil employment as at discharge. This is a higher percentage than decided by the Authority but it still leaves the applicant within Class B which means that, unfortunately for the applicant, the practical effect of the decision under review has not been disturbed.
In reaching these conclusions I have carefully considered the words of Shephard J in Freeman’s case (supra). I accept that the applicant is having difficulty from time to time with some aspects of his present employment as a facilitator with the Police Academy but I do not see his continuation in that job as being attributable to the benevolence or indulgence of his employer or his own ability to mask his true level of incapacity for such an occupation. No specific work concessions have been made for the applicant and I think that as an individual with a strong work ethic, as the applicant says he is, his present employment provides a level of activity which he finds stimulating and rewarding.
In the result therefore:
(a)I confirm paragraphs (a) and (b) of the Authority’s decision as set forth in para 4 of these reasons;
(b)However, paragraph (c) of the Authority’s decision will be deleted and in lieu thereof the following determination is made: “For the purposes of section 30 of the Act the applicant Terence Paul Dewhurst be classified as having 50% incapacity in relation to civil employment (Class B) with effect from 1 April 2002”.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Hon C R Wright QC, Deputy President
Signed: Sarah Oliver
Associate
Date of Hearing 11 November 2003 at Townsville
Date of Decision 23 January 2004The Applicant appeared in person
Counsel for the Respondent Mr Dubé
Solicitor for the Respondent Australian Government Solicitor
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