George Wilson and Commonwealth Superannuation Corporation
[2014] AATA 795
•28 October 2014
[2014] AATA 795
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1136
Re
George Wilson
APPLICANT
And
Commonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 28 October 2014 Place Brisbane The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
DEFENCE - Defence Force Retirement and Death Benefits – applicant retired from army – whether applicant should have been retired on medical grounds due to posttraumatic stress disorder – insufficient evidence to show applicant suffering posttraumatic stress disorder on discharge – decision under review affirmed
LEGISLATION
Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 26, 30, 37, 99(4)
SECONDARY MATERIALS
Mathew J Friedman et al, Handbook of PTSD, Science and Practice, 2nd ed, The Guilford Press
REASONS FOR DECISION
Deputy President P E Hack SC
28 October 2014
Introduction
The Defence Force Retirement and Death Benefits Act 1973 (Cth) (the Act), as the name suggests, provides a mechanism for the payment of benefits to those who served in the Defence Force. This case concerns payment of invalidity benefits, payable under
Part V of the Act, to members who retired, or are to be treated as having retired, on the grounds of invalidity, or of physical or mental incapacity to perform duties.The applicant, Mr George Wilson served in the Australian Regular Army between
1963 and 1983. In these proceedings he seeks a review of a decision of the respondent, the Commonwealth Superannuation Corporation, determining his entitlements to the payment of invalidity benefits.Before dealing with the factual background it is as well to start with an examination of the Act.
The legislation
By virtue of s 26 of the Act a “contributing member” (and Mr Wilson answers that description), who is retired on the grounds of invalidity or of physical or mental incapacity to perform duties, is entitled, on retirement, to invalidity benefits in accordance in Part V of the Act. Where a member of the scheme is a person who is, or was, an eligible member of the Defence Force and is entitled to invalidity benefits the Corporation is obliged by s 30(1) of the Act to,
determine his percentage of incapacity in relation to civil employment and…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
The quantum of invalidity benefits is dependent upon that classification.
But there is an additional way in which a person, who was not retired on the grounds of invalidity or of physical or mental incapacity to perform duties, may become entitled to be considered for the payment of invalidity benefits. It arises under s 37. It provides:
Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs CSC that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.
Background
It is an important aspect of Mr Wilson’s case to note that he saw active service in
South Vietnam in 1965 and 1966 and that, in the course of that service, he was exposed to significant traumatic events. Nonetheless he continued serving until his discharge in early November 1983 with the rank of Warrant Officer Class 2. On his discharge he was employed in the South Australian Prisons Service until his retirement in December 1996.Mr Wilson did not retire on the grounds of invalidity. In 2009 he made a request that the Chief of Army exercise the discretion under s 37 of the Act to determine that grounds existed, at the time of his retirement, on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties. On
17 November 2009 a delegate of the Chief of Army determined that such grounds did not exist.[1] That conclusion was reached having regard to a report prepared by a medial practitioner (and Army Officer) Dr Glenn Wells, that concluded that there was insufficient evidence to indicate that Mr Wilson had suffered sufficient disability at the time of his discharge to warrant retirement on the basis of invalidity, whether from posttraumatic stress disorder or any other condition.[2][1]Exhibit 1, page 259.
[2]Exhibit 1, page 263-264. The report is not reproduced in the material but is extracted in the decision made by the delegate.
The matter was revisited in May 2010 by the same medical practitioner who concluded,
… There may be sufficient evidence to recommend treatment under the DFRDB Act 1973 as if retired on ground of invalidity on the basis of his ongoing upper limb symptoms that were severe enough to warrant major surgical intervention. The main evidence for the latter is contained in his submission. Some background information from his medical file is enclosed and is additional to that contained in his submission.[3]
Dr Wells adhered to the view that there was insufficient evidence that Mr Wilson suffered from such a level of mental health symptoms of disability to warrant discharge on the basis of invalidity for a mental impairment. The conclusion regarding upper limb symptom led to a decision by a delegate of the Chief of Army, made on 22 August 2011, that grounds did exist whereby Mr Wilson could have been retired for medical reasons.[4]
[3]Exhibit 1, page 271.
[4]Exhibit 1, page 29.
Having received that advice the Corporation, on 22 September 2011, concluded that at the time of Mr Wilson’s discharge, grounds existed whereby he could have been discharged as medically unfit. The decision was, in substance, if not in form,[5] a decision to exercise the discretion in s 37 of the Act to treat Mr Wilson as if he had been retired on the ground of invalidity. The decision took into account the medical evidence that Mr Wilson’s thoracic outlet syndrome was the disabling condition and that,
there was insufficient evidence to conclude that a mental health disorder was causing sufficient disability to warrant retirement on the grounds of invalidity.
[5]The delegate’s actual decision appears to have elided the two elements of s 37 of the Act – a determination by a Service Chief that grounds existed on which the member could have been retired on the grounds of invalidity or of physical or mental incapacity to perform duties, and a determination by the Corporation to treat the member as if the member had been retired on that ground.
That decision having been made, the Corporation was required to make a decision under s 30 of the Act, that is, to determine the percentage of incapacity in relation to civil employment. That decision was made on 16 November 2011. The delegate concluded that the civil employment to be considered was construction trades worker, that the impairment causing the incapacity was thoracic outlet syndrome and that Mr Wilson’s capacity was diminished “to a small degree” leading to a Class C classification.
Mr Wilson sought reconsideration of the decision. That reconsideration was undertaken by the Defence Force Case Assessment Panel, a body which, by virtue of s 99(4) of the Act, acts as a statutory delegate of the Corporation. The Panel concluded that the relevant kinds of civil employment to be considered were courier and postal deliverer, construction trades worker, and prison and security officer. It held that Mr Wilson’s “retiring impairment” was thoracic outlet syndrome which diminished his capacity to undertake civil employment by a “small” degree, assessed at 10%, leading to the conclusion that Mr Wilson’s classification was C.
Mr Wilson seeks a review of that decision. He contends that at the time of his discharge he was affected by posttraumatic stress disorder as well as thoracic outlet syndrome and that those conditions diminished his capacity for civil employment in excess of 60%, warranting a classification of A.
In circumstances where the Chief of Army has found only that Mr Wilson was incapacitated by thoracic outlet syndrome and that there was no evidence that he was incapacitated by posttraumatic stress disorder, I entertain considerable reservations whether it is open to Mr Wilson to rely upon posttraumatic stress disorder as demonstrating incapacity however the arguments of the parties proceeded on the basis that it was. I propose to assume, rather than decide, that it was, since on the view I take of the evidence, Mr Wilson’s claim must fail in any event. In that regard I note that
Mr Jeffress, the solicitor for Mr Wilson, seemed to accept that, absent an acceptance that Mr Wilson suffering from posttraumatic stress disorder in November 1983, a classification of C was correct.
The question then is whether there is evidence that Mr Wilson was suffering from, and incapacitated by, posttraumatic stress disorder at the time of his discharge.
The medical evidence
I should first refer to the contemporaneous medical evidence. It is considerable, and it is universally contrary to the proposition that Mr Wilson was suffering from posttraumatic stress disorder in 1983. On eight occasions between 1973 and 1983, and well after
Mr Wilson’s active service in South Vietnam, he underwent routine Army medical examinations.[6] On each of those occasions his “emotional stability” and “mental capacity” were assessed as being normal. Then on 4 October 1985, one month prior to Mr Wilson’s discharge, he had further medical examination that required him to answer various questions about his health.[7] Where affirmative answers were given he provided further detail that was recorded by the medical officer. In answer to the question,“[h]ave you ever had, or are you now suffering from any of the following?” he answered “no” in relation to severe headaches, migraines, frequent nightmares, nail biting, nervous trouble and mental illness. Necessarily, he certified to the truth and completeness of his answers. The submissions of the Corporation drew attention to the quite detailed answers attributed to Mr Wilson in those instances where he gave an affirmative answer.[6]Exhibit 1 at pages 52-59.
[7]Exhibit 1 at page 355.
The next relevant medical opinion is that of Dr John Truman, a consultant psychiatrist, who saw Mr Wilson in October 1991 at the request of the Department of Veterans’ Affairs.[8] Dr Truman provided this summary,
This man is suffering from a Mild Generalised Anxiety Disorder, together with insomnia.
On the balance of probability, I consider that his experiences as a Regular Army serviceman sensitised him to develop the former, but the major stress factor currently aggravating the condition would appear to be the problems with his sixteen year old daughter.
The insomnia predates the generalised anxiety by some ten years or more and again, on the balance of probability, I suspect due to his experiences in Vietnam have contributed to its causation.
I note that Dr Truman’s views were informed by history that Mr Wilson’s symptoms of anxiety “began some ten years ago” in around 1981. Dr Truman could find “no significant depressive symptomology”. He appears not to have had access to Mr Wilson’s medical records from his period of service.
[8]Exhibit 1, pages 480-481.
A question arose in the course of the hearing whether posttraumatic stress disorder had been recognised as a diagnosable condition in 1991. With the agreement of the parties I have ascertained that the condition was first included as an official diagnosis in the American Psychiatric Association’s Diagnostic and Statistical Manual, 3rd edition
(DSM-III) in 1980.[9] There seems to be no reason why it would not have been diagnosed by Dr Truman in 1991 unless the required signs and symptoms were not present.
[9]Mathew J Friedman et al, Handbook of PTSD, Science and Practice, 2nd ed, The Guilford Press.
In 1996 Mr Wilson commenced seeing Dr Peter Furze, a consultant psychiatrist, for treatment. In his report of 13 September 1996[10] Dr Furze noted that Mr Wilson’s psychiatric condition had been accepted by the Department of Veterans’ Affairs since 1985 as anxiety. He went on to say:
It is my opinion that this condition is more properly diagnosed as Post Traumatic Stress Disorder with secondary anxiety and depression. I note that is DSM IV revised, PTSD is a subheading of anxiety disorders.
The report of Dr Furze makes no reference to the time of clinical onset.
[10]Exhibit 1, pages 47-49.
From that point the evidence becomes very retrospective. The views of Dr Wells in November 2009[11] and May 2010[12] have already been noted. In the latter report Dr Wells said:
[11]Exhibit 1, pages 263-264.
[12] Exhibit 1, pages 269-271.
Mental Health Condition(s)
7.There are documents provided in his submission that relate to the upper body problems (neck, chest and arms – Thoracic Outlet Syndrome?) of Mr Wilson during the period of the mid to late 1980’s or continuing from discharge. However there appears to be no significant reference to mental health symptoms during that time (DVA claim reports of 1984 and1985). The first detailed record and assessment of his mental health status that is provided in the report of
Dr John Truman, Psychiatrist, dated 23 Oct 91, eight years after discharge. This report does note a long history of symptoms of insomnia and anxiety both dating back some ten years or more. The report notes that these have progressively worsened, although he has managed his role in the Correctional Service “better than most”. There was no evidence of depression noted at that time. The Psychiatrist at that time concluded that the symptoms were related (sensitised) to his Service activities, but the major stress factor then being his domestic situation/family conflicts or relationships. This report throws no light in the level of symptoms or resulting disability at the time of Mr Wilson’s discharge (1983).
8.The further Psychiatric report of Dr Peter Furze, dated 13 Sep 96 also focuses on Mr Wilson’s then current mental health status and links to his past traumatic Army exposures. This report also notes significant stresses in his post Army discharge Correctional Service role, having been involved in riots (1986 and 1987), having been assaulted four times and witnessing several suicide attempts by prisoners. He had clearly deteriorated further by the stage of this review and was also on treatment for depression. However, the report again throws no light in the level of symptoms or resulting disability at the time of discharge (1983).
9.It is accepted that he probably did experience some symptoms (insomnia and/or nightmares) during his service or at the time of discharge but there is no evidence of significant disability from the same and no significant symptoms were reported. It does appear to be some years latter [sic] that he developed significant symptoms and interference with function. The main weight of evidence in regard to the development of mental health symptoms remains his Army medical record, supported by the only later development of significant symptoms and related disability.
10. In view of the above discussion there remains insufficient evidence that
Mr Wilson suffered from such a level of mental health symptoms of disability to warrant discharge on the basis of invalidity for a mental impairment.
Next, in November 2011 the Corporation obtained a report from Dr David Douglas,[13] an occupational physician, who undertook a “paper-based assessment’ of Mr Wilson and concluded:
In November 1983 the level of symptoms appeared to have been such that they did not prevent his duties in the military and were not having a significant impact on his general physical, neurocognitive, sensory and/or psychological functioning.
[13] Exhibit 1, pages 320-322.
Finally, Mr Wilson relies on a recent report of Dr Furze.[14] He was of the opinion that
Mr Wilson’s posttraumatic stress disorder, anxiety and alcohol problems stemmed from his war service. He said:
From his record of civilian and military problems 66-83 there is no doubt that he was quite impaired at the time of discharge from the army due to mental health problems manifest as alcohol abuse.
[14] Exhibit 4.
Mr Wilson himself gives an account of traumatic events during his service and of what he believes were the symptoms of the condition evident at the time of his discharge. Additionally his spouse and his sister gave unchallenged evidence of the changes in his nature following his service in South Vietnam. I do not doubt the sincerity of their evidence however the contemporaneous medical evidence causes me to entertain grave doubts about the reliability of their accounts of the symptoms of posttraumatic stress disorder. I prefer the evidence that emerges from the medical records of the time.
Consideration
As I have said, I propose to assume, favourably to Mr Wilson, that it is open to me to consider whether issues with his mental health, as well as thoracic outlet syndrome, incapacitated him in relation to civil employment. Mr Jeffress accepted that thoracic outlet syndrome alone did not warrant any decision other than that made by the Corporation; to succeed Mr Wilson had to be incapacitated as a result of mental health problems.
The only evidence to support such a finding is that of Dr Furze who noted, unsurprisingly, that the task of providing an opinion about mental state 31 years ago “is fraught with uncertainties”. I am unable to accept Dr Furze’s opinion because it is not based on any reliable view of the history. I find it inconceivable that Mr Wilson would have been incapacitated in November 1983 as a consequence of issues with his mental health, however described, when the medical records of the time uniformly show that he had no such issues. The record of the October 1983 discharge examination demonstrates that Mr Wilson gave particular and detailed responses to affirmative answers. He sought to explain the absence of any reference to the symptoms that he now says he was then suffering on the basis that he had a prospect of being retrained in the Army and further promoted, resulting in a higher pension when he eventually did retire. I am unable to accept that explanation. It makes no sense given that Mr Wilson had actually sought his discharge:[15] he would have needed to withdraw that request to be retained in the Army. It would seem, in any event, that at the time of that examination he had already commenced his first civil employment:[16] on the job training to assist in his effective resettlement.
[15]Exhibit 1, page 147.
[16]Exhibit 1, page 155.
I do not doubt that Mr Wilson has come to believe that he was suffering the symptoms of posttraumatic stress disorder whilst still in the Army but, where the contemporaneous medical records are to the contrary, I am unable to accept that his evidence is reliable. And given that Dr Furze has relied on that, unreliable, history and has not been provided with the contemporaneous records that demonstrate the contrary, I am unable to accept his evidence.
The available medical evidence leaves me satisfied that Mr Wilson was not incapacitated by mental health issues in November 1983 on discharge. Accordingly the decision under review will be affirmed.
I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
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Associate
Dated 28 October 2014
Date of hearing
16 October 2014
Solicitor for the Applicant
Alstonvale Law
Solicitor for the Respondent
Norton Rose Fulbright Australia
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