GRAHAM SHINGLES and DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
[2010] AATA 505
•21 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 505
ADMINISTRATIVE APPEALS TRIBUNAL ) No N200501510
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM SHINGLES Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date21 June 2010
PlaceCanberra
Decision The decision under review is varied. .....................[sgd].............
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – invalidity benefit under Defence Forces Retirement Benefits Act 1948 (Cth) (1948 Act) - whether amendments to the Defence Force Retirement and Death Benefits Authority Act 1973 (Cth) (1973 Act) and to the 1948 Act bind the Tribunal when deciding an application for a condition which arose in 1971 – Tribunal guided not bound by amendments - whether Applicant’s classification under 1948 Act assessed correctly – degree that the impairments diminished the Applicant’s capacity to undertake civilian employment –– the decision under review is varied.
Defence Force Retirement and Death Benefits Authority Act 1973 (Cth)
Defence Force (Retirement and Death Benefits Amendments) Act 1979 (Cth)
Defence Forces Retirement Benefits Act 1948 (Cth) ss 51, 53
Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 1 ALD 31
Re Clarke and Defence Force Retirement and Death Benefits Authority [1993] AATA 502
Coco v R (1994) 179 CLR 427
Defence Force Retirement and Death Benefits Authority v Heffernan (1978) 1 ALD 429
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Ex-Christmas Islanders Association Inc v Attorney-General [2005] FLA 1867
Fellowes and Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156
Re Shelton and Defence Force Retirement and Death Benefits Authority (1979) 2 ALD 574
Shingles and Defence force Retirement and Death Benefits Authority [2009] FCA 1211
Re Thomson and Defence Force Retirement and Death Benefits Authority (1977) 6 AAR 424
Re Whiteford and the Commissioner for Superannuation (1987) 6 AAR 70
Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN No 37
15 June 2010 REASONS FOR DECISION
Professor RM Creyke, Senior Member
1. Mr Graham Shingles served with the Australian Defence Force from his enlistment in 1969 until his discharge on 26 October 1971, a period of two years and eight months. He served twelve months in Vietnam.
2. During service Mr Shingles suffered from bilateral Achilles tendonitis with exostosis (spurs) to both of his heels, post traumatic stress disorder (PTSD) and alcohol abuse. During service, he had an operation for his heel conditions. Mr Shingles did not report his other conditions. His Medical Board report on discharge refers to his heel conditions, but not others. A medical examination on 22 October 1971 recorded normal emotional stability and mental capacity and fit everywhere (FE)[1] and he was discharged on 26 October 1971 medically fit.
[1] FE = Fit Everywhere is a notation adopted within the armed forces and is used in medical classifications.
3. After discharge, Mr Shingles sought to be classified under the Defence Forces Retirement Benefits Act 1948 (Cth) (1948 Act) for the purpose of receiving an invalidity benefit. On 18 June 2002, the Defence Force and Retirement Death Benefits Authority (Authority) accepted his claim and decided to classify Mr Shingles as 15 per cent, Class C backdated to 27 October 1971, the day following his discharge. On reconsideration on 6 December 2002, the Authority increased the percentage to 20 per cent, Class C. Fifteen per cent was a composite assessment for each heel; the balance of 5 per cent was an assessment for a combination of his 'mild PTSD' and his alcoholism.
4. Mr Shingles sought review of that decision by the Tribunal which, on 17 May 2004, affirmed the decision. Mr Shingles sought review of that decision by the Federal Magistrates Court for error of law. On 16 September 2005, the Court allowed the appeal and remitted the application to the Tribunal to be reconsidered by a differently constituted panel of the Tribunal.
5. On 2 March 2007, the Tribunal reconsidered the matter and affirmed the decision of the Authority. Mr Shingles appealed again to the Federal Magistrates Court which on 14 April 2008 dismissed the appeal. Mr Shingles then appealed to the Federal Court for error of law which on 30 October 2009 upheld the appeal, finding bias and breach of natural justice. The matter was remitted to a Tribunal again to be heard by a differently constituted panel of the Tribunal. That application was heard before this Tribunal in Canberra on 19 and 22 April 2010.
Legislation
6. The decision is to be made under the Defence Forces Retirement Benefits Act 1948 (Cth) (1948 Act). Section 51 of the 1948 Act provides for the classification of percentage of incapacity. Section 53 provides for a reconsideration of a classification.
51 Classification in respect of incapacity
(1) Subject to subsection (3), where:
(a) a member who is a contributor has been retired before attaining the retiring age for the rank held by him ...
on the ground of invalidity or of physical or mental incapacity to perform his duties ... he is entitled to benefit in accordance with sections 52, 52A and 53, but, subject to section 60, is not otherwise entitled to benefit under this Act.
(2) Where a person... is, or is about to become, entitled to benefit by virtue of subsection (1), the Authority shall determine the percentage of total incapacity of the person in relation to civil employment and shall classify the person according to the percentage of incapacity as follows:
Percentage of Incapacity Class
60 or over A
30 or over but less than 60 B
Less than 30 C
...
(5) This section does not apply to a person who retires on or after 1 October 1972.
(6) Where a member who is a contributor has, before 1 October 1972, been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but 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 the Authority 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.
53 Reclassification in respect of incapacity
(1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a pensioner classified under section 51 is such that the classification of the pensioner should be altered, reclassify him in the appropriate classification set out in subsection 51(2) according to the percentage of his incapacity in relation to civil employment. …
(1A) In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a pensioner; …
the Authority shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the pensioner;
(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c) the degree to which any physical or mental impairment of the pensioner, being a prescribed physical or mental impairment, has or had diminished the capacity of the pensioner 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.
(1B) In subsection (1A), prescribed physical or mental impairment, in relation to a pensioner or a deceased pensioner, means:
(a) a physical or mental impairment of the pensioner that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the pensioner was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b) any other physical or mental impairment of the pensioner causally connected with a physical or mental impairment referred to in paragraph (a).
(2) Where a person is reclassified under this section, the Authority shall specify the date from which the reclassification has effect and, on and after that date, the person shall, for the purposes of section 52, be deemed to be classified accordingly.
(2A) Where a deceased person is reclassified under this section:
(a) the Authority must specify the day from which the reclassification has effect; and
(b) the person is taken, for the purposes of section 52, to have been classified accordingly on and after that day. ...
(4) In this section, pensioner includes a person who is classified as Class C by reason of his having been reclassified (whether before or after the commencement of this subsection) under subsection (1) of this section, whether or not the person is entitled to a pension.
7. The 1948 Act scheme closed on 1 October 1972 and it was expected that all future applications would be made under the Defence Force Retirement and Death Benefits Act1973 (Cth) (1973 Act). Mr Shingles's case is among those which have indicated that expectation was premature. As a consequence, amendments in 1979 made to the 1973 Act were applied also to the 1948 Act in subsections 53(1A), (1B) and (2A). Subsection (1A) and (1B) of section 53 give an indication of the criteria to be applied for the purposes of reclassification under that section, but as they were not in force in 1971, do not strictly bind the Tribunal. This is discussed further at Consideration below.
Issues
8. The issue is whether Mr Shingles’s classification under section 51 of the 1948 Act is correctly assessed as Class C, 20 per cent, or whether he should be classified at a higher percentage of incapacity and, in particular, whether he should be classified Class B. It is not contested that the employment Mr Shingles was suited to as at 27 October 1971, the day immediately following his discharge, was as a storeman or a labourer.
History and evidence of Mr Shingles
9. Mr Shingles said he left school when he was 15 years old and worked as a jackaroo and farmhand. He enlisted in the Australian Army on 10 February 1969 for a term of two years with an extension of a further eight months. His core training while in the armed forces was in stores management. He undertook a 12 month tour of duty in Vietnam and was discharged from the Army on 26 October 1971.
10. While in Vietnam, Mr Shingles said he experienced a number of incidents which troubled him, including:
·what he thought was the enemy firing at his camp, and seeing helicopters carrying wounded, seriously injured and deceased soldiers;
·being told that his wife believed he had been discharged from the Army and had left her, upon which he threatened his Army Sergeant Major with a weapon to get him to do something about the misinformation, and was subsequently relieved of his firearm;
·witnessing the shooting and deaths of four Viet Cong prisoners by South Vietnamese soldiers;
·knowing that three of his friends deliberately shot themselves in the foot to get out of Vietnam; the blowing up of another soldier while on a cleaning exercise; and the deaths of a number of soldiers one Christmas Day on a shooting spree by an inebriated soldier friend.
11. Mr Shingles suffered from problems with his feet while on service due to the growth of calcaneal spurs on his heels. The discomfort these caused led to his army boots being replaced by army-issue sandshoes. Mr Shingles was concerned that, when he went on patrol in Vietnam two or three nights per week, the sandshoes provided insufficient protection against sharpened and infected bamboo poles ('punji sticks') set by the Viet Cong to injure allied soldiers.
12. Mr Shingles returned to Australia for rest and recreation leave in April 1971 and did not go back to Vietnam. On 29 July 1971 Mr Shingles had an operation to remove the calcaneal spurs on his heels. The operation was not fully successful. Following his surgery, a report of the Repatriation Department noted that Mr Shingles was unable to wear any footwear other than Hush Puppies. The prognosis was that:
[h]is present occupation as a storeman is likely to cause some stress on these feet which are therefore likely to continue to worsen. There is also a family history of foot trouble which indicates that he is also likely to have more severe symptoms in the future.
13. After his discharge from hospital, Mr Shingles was posted to the Eastern Command Personnel Depot at Watson's Bay, Sydney. Initially, his job was as a barman in the officer's mess and later he had duties in the medical ward. He wore slippers on his feet for both positions. Mr Shingles was discharged from service on 26 October 1971.
14. Initially, following his discharge Mr Shingles spent most of his time drinking at a hotel. After about six months, in late February or early March 1972, his father-in-law found him a job at Bandiana Army Barracks as a handyman. He wore sandshoes in this position. He continued to drink. The job lasted eight months until he resigned as an alternative to being sacked. His employers advised they were unhappy with him taking days off and coming to work under the influence of alcohol. In evidence at the 2007 hearing, Mr Shingles said he took days off because he 'couldn't stand going and fronting up to people'. As he explained, this was because of 'difficulty with ... communication, I just couldn't be near people or be given orders and I just couldn't work'.
15. In his evidence to the Tribunal in 2007, Mr Shingles listed about 30 jobs he had undertaken between 1972 and the early 1990s when he retired. His pattern was to remain in each job between one day and up to eight months. He ceased working in each of these jobs because of 'alcohol and [his] feet being sore', because he could not wear industrial boots, and because he was drinking at lunchtimes and often missed days of work after drinking alcohol. From about 1981 to 1990, Mr Shingles drove trucks either as an owner-driver or, when he had lost his licence, as a ‘second driver’.
16. In a report dated January 1972, there are references to Mr Shingles having 'Large recurrent bony spurs on each heel which are painful [and] chronically blistered that prohibits the wearing of normal footwear'. On 17 March 1972, Mr Bottoms, an orthopaedic surgeon, recalls that: 'Mr Shingles was unable to wear any sort of shoes except corduroy and rubber combination shoes (Hush Puppies)'. Mr Shingles wore slippers and sandshoes at the time of his discharge and following his discharge.
17. He had further surgery for his 'severe, bilateral posterior calcaneal spurs with overlying calluses and bursitis'. After this operation, there is a notation, some two months after the surgery, that ‘patient can only use slippers’ and that he cannot return to work for six weeks. Dr Buckmaster, orthopaedic surgeon, performed the surgery and wrote a report dated 6 August 1976, which noted that Mr Shingles had seen him at the end of July 1972 'when he complained that his work, as a steward, was especially affected since he was on his feet all day and this was causing considerable pain in both heels, the left worse than the right'. Mr Shingles gave evidence at an earlier Tribunal hearing that he was sacked from a couple of jobs because he did not wear appropriate footwear. Until a short period after the operation on his feet in 1976, in each of these jobs he was either wearing 'sandshoes', 'soft footwear', or on one occasion, ‘thongs'.
18. Mr Shingles said he was a teetotaller before enlistment but started drinking before going to Vietnam and further increased his consumption on service to combat his anxiety. When reassigned to duty in the Sergeant’s Mess while in Vietnam, he was responsible for locking up the alcohol and often helped himself to drinks. There is no dispute that by the time of his discharge, Mr Shingles was abusing alcohol. For example, in a medical report on 12 July 1971 there is a reference to 'alcohol 10 middies/day until recently'. At his discharge, because he was anxious not to hold up his departure, Mr Shingles said he told the medical examiners that he had no health problems.
19. The Final Medical Board Report on Mr Shingles, dated 22 October 1971, stated that he had a percentage incapacity for his foot condition of 15 per cent and a composite assessment of incapacity for the general labour market of 15 per cent. No mention is made in that report of abuse of alcohol or PTSD. On 20 November 1971, a report of a medical practitioner assessed the extent of Mr Shingles’s incapacity for his heel conditions as only 10 per cent.
20. Post-service, between 1972 and 1990, Mr Shingles’s alcohol abuse continued. He said he consumed alcohol to deal with his ‘nerves’. As a consequence of his drinking he was charged on several occasions with driving under the influence. He lost his licence four times: for two months from 9 December 1981; for twelve months from 25 April 1984; for six months from 4 May 1986, and for three years from 19 October 1990. Following the last loss of licence, he ceased work as a truck driver and sold his vehicle. He underwent counselling and attended Alcoholics Anonymous for a time in the late 1970s.
21. Mr Shingles was referred to a psychiatrist in 1971 while he was in Vietnam. The psychiatrist's report, dated 29 January 1971, referred to Mr Shingles as ‘depressed and emotionally labile’. The report recorded Mr Shingles's concern that his wife had threatened to take pills to have Mr Shingles returned to Australia. It also noted ‘the soldier has never been happy in South Vietnam and has been a frequent attendee at Surgeons with Calcaneal spurs – wants them "fixed up"'’. At the same time, the report also noted ‘apparently his Company and unit Officer Commanding find his work satisfactory’. The report concluded: ‘He settled after ventilating some of his aggression against the Army and then Surgeons’. Towards the end of the report it noted that Mr Shingles’s chequered pre-service history was ‘stabilised by joining Army. [He is] now disillusioned’. The psychiatrist diagnosed 'Agitated Depression (Mild) in a soldier ... who dislikes being in South Vietnam and separated from his wife'.
22. There is also a reference to a Repatriation Department report dated 2 August 1971 that Mr Shingles 'On admission, appeared to be anxious individual'. At the Tribunal hearing in 2003, Mr Shingles gave evidence that during his first marriage, after coming back from Vietnam, he would wake up and find he was ‘strangling or sort of throttling his wife’ and that in Vietnam he was told by the corporal in the same tent that ‘he was very loud in the night and talking about shooting people’.
23. Post-service, there is evidence of Mr Shingles attending the Vietnam Veterans’ Counselling Service for about 12 months in the 1980/1981 period and a report that he visited the Canberra office of the Vietnam Veteran’s Counselling Service in 1979 and in 1990. However, he claimed he did not have a psychiatric assessment until 1989. In 1989, Mr Shingles had a complete breakdown and was admitted to Concord Hospital following a referral by the Vietnam Veterans’ Counselling Service. It was then that he was diagnosed with PTSD, as recorded, for example, by Dr Li on 2 March 1990. His clinical notes dated 14 January 1991 while in Concord Hospital also refer to symptoms such as 'flashbacks' to Vietnam 'panic attacks', 'shaking inside', 'depressed mood, weepiness', all of which are symptoms of PTSD. In the 2007 hearing, Mr Shingles said the first time he told doctors about his nightmares was in Albury, a couple of years after he was discharged from the Army, and he was prescribed Seconal to help him sleep. There is no written record to support this assertion.
24. Mr Shingles married just prior to going to Vietnam and the marriage broke up in about 1977 when his son was two. After this he was in a de facto relationship until about 1983, and when that relationship ended, he had another de facto relationship, which also came to an end.
25. After his discharge from service, Mr Shingles's 30 or so jobs over 21 years included running a business, performing housing maintenance work, running a boarding house, labouring, bar work, and running a trucking business, which he said he operated for about eight years. During this time, he continued to have alcohol and foot problems. Accordingly, he was dismissed or not found to be suitable for a number of these jobs. For example, Mr Shingles said he was 'constructively dismissed' from his position at Bandiana where he worked immediately following his return from Vietnam. He last worked in 1992.
26. In 1991, the Department of Veterans’ Affairs accepted Mr Shingles’s alcohol and benzodiazepine abuse disorder and PTSD as due to his service, backdated to 5 August 1990. His foot condition was accepted as due to his service and a pension was backdated to 20 April 1971. In July 1992, a pension was granted at the special (TPI) rate.
Medical evidence
27. A report of Dr Bartrams, orthopaedic surgeon, dated 17 November 1972 noted that Mr Shingles’s heel conditions 'make it impossible for [Mr Shingles] to wear footwear and are painful all the time'. The report also noted 'There were no other complaints and general examination showed him to be in good health'.
28. On 3 August 1976, it was recommended by Dr Buckmaster, orthopaedic surgeon, to the Repatriation Commission, that 'the veteran is so disabled by pain in heels ... he is unable to work'. Dr Buckmaster's report noted that Mr Shingles had 'complained that his work, as a steward, was especially affected since he was on his feet all day and this was causing considerable pain in both heels, the left worse than the right'.
29. A report of Ms Helen McCathie, clinical psychologist, dated 22 November 1990 said Mr Shingles had difficulty sleeping, had dreams about Vietnam, woke ‘up in bed soaking wet’ and experienced intrusive thoughts about Vietnam ‘which he cannot stop’.
30. Dr Duncan, consultant psychiatrist, treated Mr Shingles at Concord Hospital. His evidence comprised a number of letters dated respectively February 1991 (to Dr Muggeridge), May 1991 (to Dr Gelbert), May 1992 (to Dr Muggeridge), 17 April 2000, (from the emergency department) and 27 June 1992. He confirmed that his early reports accept the view that Mr Shingles had some of the symptoms, but not full-blown, PTSD. His view was that the condition was not as significant in 1971 as it was in 1991. The history he had was that Mr Shingles suffered nightmares earlier than 1991, spanning back to Vietnam. Nonetheless, he conceded that ‘it is really quite likely’ that in 1971 Mr Shingles had a significant level of PTSD masked by alcohol. The psychiatric assessment of Mr Shingles in 1971, he said, indicated 'significant psychiatric problems were present at that time'.
31. In the July 1992 report he said:
At this stage and with [Mr Shingles’s] pattern of dependency I do not think it is possible to be clear whether he has a primary post traumatic stress disorder and associated substance abuse, [or] whether he has primary substance abuse and associated post traumatic stress symptoms.
32. Subsequently Dr Duncan said that at that time he had only been working with veterans for a couple of years and he reported: ‘I feel somewhat shamefaced in reading this report now, as this conclusion [that Mr Shingles did not have full-blown PTSD] is clearly inappropriate’. He noted also in cross-examination that the case conference notes on Mr Shingles in Concord Hospital which discounted him having PTSD would have been a quick assessment and not necessarily accurate.
33. In his evidence at the 2003 hearing, in 1971 Mr Shingles was 30 to 40 per cent disabled but ‘His social function was much much lower than his occupational function and that that was a result … of a lot of anxiety symptoms and a lot of things that he was suppressing by alcohol’. Dr Duncan clarified this statement in cross-examination as meaning that occupationally Mr Shingles’s level of incapacity in 1971 was less than 30 per cent.
34. Dr Malcolm Dent, consultant psychiatrist, provided a report dated 24 July 1992 which estimated that Mr Shingles's 'PTSD and associated alcohol abuse' would have met the '70+% 'profound psychiatric impairment' for the purposes of the disability pension administered by the Department of Veterans' Affairs.
35. Dr Graham Altman, consultant psychiatrist, provided two reports dated 4 September 1997 and 28 June 1999 and gave oral evidence to the Tribunal’s hearing in 2003. He had treated Mr Shingles for PTSD since 17 October 1995 but said at the hearing that, given the history provided by Mr Shingles, ‘it is highly likely that he [Mr Shingles] had the PTSD… in Vietnam or pretty soon after Vietnam’. In his view, the fact that the Department of Veterans’ Affairs had accepted that Mr Shingles was totally and permanently incapacitated for work as a result of the condition since 1992 supported his findings.
36. Dr Altman noted that Mr Shingles had been referred to a psychiatrist in 1971 while he was in Vietnam and that he had undergone a psychiatric assessment. Dr Altman did not place too much weight on the ‘label’ given to the condition in 1971 – characterised then as ‘mild agitated depression’ – since PTSD was only recognised in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (DSM2) in 1980. Prior to then, the condition had other labels. At the same time, Dr Altman noted it was unusual that Mr Shingles had not reported symptoms until the 1990s. However, he conceded there could have been delayed onset of the condition. In Dr Altman’s view, Mr Shingles was exhibiting symptoms of PTSD by 1991 and ‘his whole history is very much in keeping with someone severely affected by post traumatic stress disorder’.
37. Dr Altman also said Mr Shingles had many of the symptoms of alcohol abuse. In his view ‘alcohol can be used often to try and numb that anxiety … related to PTSD and mask some of the symptoms associated with PTSD as well’. He also suggested that Mr Shingles’s PTSD predisposed him to alcohol abuse. His opinion that Mr Shingles's PTSD was present either during or soon after Vietnam was based on evidence of Mr Shingles’s aggression, his relationship problems, and, post-service, his constant change of jobs. In cross-examination, Dr Altman said Mr Shingles's impairment was at the moderate level, that is, somewhere between 30 and 60 per cent.
38. Dr Avtar Sachdev, orthopaedic surgeon, prepared two reports both dated 11 December 2001. Dr Sachdev concluded that, as at 1971, Mr Shingles’s foot condition fitted the 10 per cent to 30 per cent impairment category in relation to his capacity to perform work as a labourer or store person. As he said in his first report of 11 December 2001:
The Achilles tendonitis which was present at the date of discharge from the ADF on 26 October 1971 would have restricted him from wearing boots in order to carry out the duties of a Storeperson or Labourer. However, if he did not have to wear boots, he should have been able to perform most of the duties of a Storeperson except, perhaps, for unloading vehicles. He should have been able to do receiving and checking incoming goods, lifting and stacking good which were not more than twenty kilograms in weight, operating machinery as well as packing and issuing stores. Lifting heavy loads and unloading heavy weights from vehicles would have caused aggravation of his symptoms due to Achilles tendonitis.
39. Dr Peter Conrad, surgeon, provided reports dated 16 April 2003 and 9 May 2003. In his report of 16 April 2003, Dr Conrad said:
At the time of discharge from the Australian Army in 1971 due to his severe Achilles tendonitis, which precluded him from wearing boots, he could not have carried out the duties of a store person, labourer or farm hand. At the most he could have done some light cleaning work, or very light store work in a position where he could wear slippers or very light suede shoes and did not have to do excessive standing, walking or going up and down stairs.
40. On the basis of this evidence, Dr Conrad was initially prepared to change his assessment of incapacity from 20 per cent to 35 per cent for Mr Shingles’s foot condition. Although he was not a psychiatrist, he said he would also have assessed Mr Shingles’s impairments due to PTSD and alcoholism at 35 per cent. When these two are added together, Dr Conrad said he would have made a composite assessment of 70 per cent. In cross-examination, he conceded the level of impairment due to Mr Shingles’s heels and his inability to wear heavy footwear would have depended on whether he could wear sandshoes in his occupation, rather than boots. In the final stage of the hearing, he conceded that Mr Shingles would have had ‘a 20 per cent loss of efficient use of each foot, or perhaps putting in the terminology, 20 per cent permanent loss of efficient use of each leg below the knee’.
41. Dr Andrew Robertson, consultant forensic and general psychiatrist, provided reports dated 22 April 2003 and 21 May 2003 and gave oral evidence to the Tribunal’s hearing in 2003. In the first of these reports he diagnosed PTSD, which was ‘chronic and severe and which results from [Mr Shingles’s] military service in Vietnam’. He pointed out that Mr Shingles’s PTSD was complicated by alcohol dependency and abuse. He concluded that ‘as his [PTSD] condition gradually worsened and his alcoholism became more chronic, he became progressively unable to maintain employment’. As a consequence he had not worked in 2003 for the previous ten years. In his opinion:
…at the time of his release from military service, Mr Shingles was probably not less than 50% disabled, and I think that he is now of the order of 90% disabled, in terms of fitness for employment or ability to undertake activities of ordinary living.
42. In his report of 21 May 2003, Dr Robertson amended his assessment to accord with that used by the Authority and estimated that ‘Mr Shingles had an impairment of between 30% and 40% at the time of his discharge from the Army’. He also noted that ‘Mr Shingles was suffering from a disorder or disease which was progressive in nature’. He said his expertise did not permit him to make an assessment of Mr Shingles’s foot condition, but he said he was happy with the assessment ‘of a 35% impairment’ by Dr Conrad.
43. In cross-examination in 2003, Dr Robertson said it was 'remotely possible' that Mr Shingles’s condition was late onset and was not diagnosed until the early 1990s. He explained that late onset PTSD is rare but can happen, particularly if something triggers full-blown symptoms. In his view, Mr Shingles’s condition in 1971 and subsequently was probably masked by his alcohol and Benzodiazepine abuse. He acknowledged that it is commonly accepted that alcohol can be a co-morbid condition, masking the effects of PTSD or symptoms of PTSD, and that the failure to identify the condition as PTSD sooner was due to an absence of knowledge by psychiatrists about the disorder, and their failure to ask questions which would have identified the condition. As he said, it was not until ‘the mid-eighties [that] we knew the areas to probe'. In his view, Mr Shingles’s ‘phobic anxiety … sleep disturbance and … nightmares’ were all symptoms of PTSD, which Mr Shingles was experiencing in 1971. In cross-examination, given evidence of Mr Shingles’s other concerns at the time, namely relating to his feet and his relationship with his wife, he modified his assessment from ‘not less than 50 per cent’ to 40 per cent.
44. Dr Anthony Dinnen, consultant psychiatrist, provided a report dated 15 June 2006. In that report, Dr Dinnen examined the reports of the other experts that were available at that time. In Dr Dinnen’s opinion, it was likely that at his discharge, Mr Shingles was suffering from PTSD. He concluded:
... in subsequent years there were some efforts to maintain adjustment which eventually failed. Accordingly, I believe it is reasonable to assume that the objective impairment at the time of his discharge from the Army was moderate rather than small.
45. In Dr Dinnen’s view, Mr Shingles’s PTSD may have ‘caused or contributed to his incapacity for his duty in the ADF immediately following his discharge on 26 October 1971’. He said it was quite common for soldiers on return from Vietnam to have a high level of incapacity as a result of PTSD and then, after a year or two, to recover somewhat and then worsen. He said the progression of the disease was not linear. In his view, Mr Shingles had a co-morbid alcohol dependence/abuse disorder and he noted the common association of PTSD with substance abuse. In his view, as at 26 October 1971, Mr Shingles’s moderate psychiatric condition and co-morbid conditions would have been between 30 per cent and 60 percent. In Dr Dinnen’s view, Mr Shingles’s –
Symptoms of anxiety, depression, irritability, anger, helplessness, lack of motivation, difficulty in interpersonal relationships and problems with memory and concentration are all consequent to post traumatic stress disorder which is a form of anxiety disorder, and are aggravated by the abuse of alcohol which was present at the time.
46. As he also said:
…the gradual progression of his psychiatric illness through the years is clearly evidence, from the assessment carried out by the psychiatrist in 1971 to the recent reports from Drs Altman and others. The granting of temporary and then permanent total incapacity pension some fifteen years ago bears very strongly on the evaluation, in retrospect, of the likely impact of his psychiatric problems through the years after his discharge from the Army.
47. In cross-examination Dr Dinnen said that ‘the description [of agitated depression] given by the psychiatrist in January 1971 is certainly consistent with it being a post traumatic stress disorder type reaction’. He also said that Mr Shingles’s failure to get a job in the six months post Vietnam ‘was related to his psychiatric condition at the time’. Dr Dinnen also noted that Mr Shingles’s -
…adjustment had not been good for some long time before [the early 1990s]. In other words I was saying it wasn’t a sudden decompensation from a good level of adjustment, it was a worsening of a disturbance that was present for some years before.
48. He concurred with Dr Altman’s view that because PTSD was unknown in the 1970s it explained the failure to identify it earlier.
49. Dr Walter Mickleburgh, consultant psychiatrist, prepared a supplementary report dated 22 December 2006. In his opinion, Mr Shingles’s symptoms of –
…mild agitated depression, hypervigilance, irritability, nightmares and alcohol abuse were manifest at the time of his discharge and probably would have impaired his capacity to undertake employment as a farm hand or storeman to some extent.
50. His ‘tentative estimate’ of Mr Shingles’s incapacity for employment as a storeman or farm hand in October 1971, due to his PTSD and alcoholism, is ’small, 10% to less than 30%’. However, he said in the 2007 proceedings that when he made his assessment six years previously, it had been 'too speculative really to be reliable'. He also noted that Mr Shingles's 'real problem was a very severe dependence on alcohol'. In Dr Mickleburgh’s view in the 2007 proceedings:
there is no valid way to assign percentage values to the various component stressors in a multi-causal disorder. I cannot quantify the contribution of the alcoholism separately from that of the PTSD in its effect on [Mr Shingles’s] capacity to work as a farm hand or storeman.
51. Mr Shingles provided references from employers in 1975 and 1980 which indicated he was a hard worker, quiet and efficient with customers, clean and well organised, and could be recommended to prospective employers.
Consideration
52. There was no challenge at the hearing to Mr Shingles's credibility. The Tribunal notes, however, that there is some disparity in the evidence in relation to dates and length of periods of employment in certain occupations. These have not precluded the Tribunal from making an assessment as required.
53. The 1948 Act provides for payment of a benefit. The benefit to which a person is entitled under section 51(1) of the Act depends on the person’s classification under that provision. Classification is determined by ‘the percentage of total incapacity of the person in relation to civil employment’.[2] The task of the Tribunal is to decide Mr Shingles’s degree of incapacity for civil employment as at 27 October 1971, the day after his date of discharge. The relevant incapacity comes from his level of impairment.
[2] Defence Forces Retirement Benefits Act 1948 (Cth) s 51(2).
54. On 27 October 1971, Mr Shingles’s impairments were described in the decision of the Authority on 6 December 2002 as ‘bilateral Achilles tendonitis with exostosis of os calcis and mild post traumatic stress disorder’. That decision was made in accordance with section 51(6) of the 1948 Act which deemed Mr Shingles to have suffered from these conditions since 27 October 1971. The report notes that the PTSD included the associated alcohol abuse. Mr Shingles’s level of incapacity in accordance with section 51 of the 1948 Act was classified as 20 per cent, Class C.
55. The 1948 Act does not state how the percentage is to be arrived at, except to note in section 51(2) that the figure is to take account of the percentage of total incapacity of the person in relation to civil employment. Nor is ‘civil employment’ defined. In 1971, at the date of Mr Shingles’s discharge, there were no criteria in the 1948 Act by which the Authority was to establish the percentage of incapacity. Subsections 53(1A) and (1B) which set out such criteria (see paragraph 6 of these reason) were added in 1979.
56. However, the Tribunal has some guidance from statements in key cases. As the Tribunal (Brennan J (President), KS Edmunds and Dr M Glick (Members)) said in Re Bos and Defence Force Retirement and Death Benefits Authority:[3]
In general, the percentage of incapacity at the time of the determination will be arrived at by ascertaining what the employment talents of the individual would have been at that time but for the incapacity, by considering … what employment opportunities have been lost, and by evaluating the importance of the lost opportunities against the range of opportunities that would otherwise have been opened.
[3] Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31 at 35.
57. Although section 51 provides for classification, the evaluative process does not cease and can be exercised from time by the Authority. The criteria for reclassification are set out in section 53 of the 1948 Act. Speaking of the reclassification power, prior to 1979, the Full Court said in Defence Force Retirement and Death Benefits Authority v Heffernan:[4]
The power of re-classification conferred upon the Authority by s 53(1) may be exercised from time to time. The expressed condition of its exercise is the Authority’s satisfaction that the relevant percentage of incapacity is ‘such that the classification of the pensioner should be altered’. There is nothing in the quoted phrase which restricts the Authority to particular grounds of re-classification or which precludes it from considering any material fact or event which occurs subsequent to the original classification. … Section 53(1) arms the Authority with a power which may be exercised as frequently as necessary to reflect the relevant incapacity of the pensioner from time to time. It does not, either expressly or impliedly, require the Authority to determine the question whether the particular pensioner should be re-classified by reference to his incapacity at the time of his discharge as distinct from his incapacity at the time when the question whether he should be re-classified arises for decision.[5]
[4] Defence Force Retirement and Death Benefits Authority v Heffernan (1978) 1 ALD 429.
[5] Id at 431.
This statement was interpreted as allowing the Authority to take into account an illness which arose after the member’s retirement from the Defence Force.
58. The 1979 amendments to the 1973 Act and the 1948 Act were intended to overturn the effects of this statement in Heffernan. The amendments included specific criteria to be taken into account in conducting the assessment process and confined consideration to the disabilities that led to discharge. As the second reading speech noted, these principles of assessment were:
… directed to the extent to which an invalidity retiree’s capacity to gain civilian employment commensurate with his skills and employment background is affected by the disabilities that caused his retirement or by any subsequent causally connected disability.[6]
[6] Second Reading Speech for the Defence Force (Retirement & Death Benefits Amendments) Bill 1979.
59. In other words, impairment for the purpose of obtaining an invalidity benefit is limited to those impairments which either caused retirement or, if the impairment arose later, were caused by such impairments.
60. Whether the amendment was intended to operate retrospectively to the date of commencement of the 1948 Act has not been determined definitively. The text of section 4 of the Defence Force (Retirement and Death Benefits Amendments) Act 1979 (Cth) does not expressly so provide, nor is it apparent by implication. The Tribunal notes that to negate the presumption against retrospectivity, a clear intention to that effect is required.[7]
[7] Coco v R (1994) 179 CLR 427 at 437.
61. In addition, in that context, the Tribunal notes the obiter comment of Finn J in Shingles v Defence Force Retirement and Death Benefits Authority:[8]
… where the Parliament amends a provision of an Act (here s 53) but does not expressly amend another which deals with a precursor, but like, provision to that amended (ie s 51) so that the two are no longer harmonious, a court is likely to be slow to assume in the absence of clear contextual justification that there was a legislative intent manifest to impliedly amend that provision or to so change the purpose of the Act through the amendment as to change via contemporary principles of statutory construction the meaning of the unamended provision.[9]
[8] Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211.
[9] Id at [48].
62. Applying these principles, as the Authority in its deemed decision accepted that Mr Shingles’s impairments included his calcaneal spurs, his alcoholism and his PTSD, there is no need to consider causes of his incapacities which arose subsequently (Heffernan). Indeed the only potential issue is whether the later onset of Mr Shingles’s full-blown PTSD can be considered. Since his later, more debilitating PTSD would have been a ‘causally connected disability’ and it appears from the second reading speech for the 1979 amendments that a worsening of an existing condition was accepted as a disability, there is no issue as to the nature of the impairments under consideration if the Tribunal were to take account of the worsening of symptoms of Mr Shingles’s PTSD.
63. The Tribunal’s findings on this issue mean that in Mr Shingles’s case, where the facts arose prior to the 1979 amendments, the arguments in later cases such as Defence Force and Retirement Death Benefit Authority v House[10] and Freeman vDefence Force and Retirement Death Benefit Authority,[11] do not apply. These cases established that in making an assessment or undertaking a reclassification no matters, other than those listed in section 53, can be taken into account. That restriction does not apply to Mr Shingles since those cases post-dated the 1979 amendments to the legislation. At the same time, the Tribunal can be guided in its decision-making task by the criteria inserted by the 1979 amendments into section 53 of the 1948 Act.
[10] Defence Force and Retirement Death Benefit Authority v House (1989) 22 FCR 138.
[11] Freeman vDefence Force and Retirement Death Benefit Authority (1985) 5 AAR 156.
64. The Tribunal accepts the alternative submission of the Authority that Mr Shingles’s total incapacity for civil employment as at 27 October 1971 is to be assessed by reference to the following factors:
·The relevant incapacity caused by the medical disability or impairment which caused him to be retired; and
·The civil employment for which Mr Shingles is suited by his ‘talents – his education, training, skills, physical strength, personality or other attributes’.[12]
[12] Re Bos andDefence Force and Retirement Death Benefits Authority (1977) 1 ALD 31 at 34.
In effect the criteria parallel those in section 53(1A) of the 1948 Act.
65. The task of the Tribunal, then, is to decide the following:
·what were the impairments which caused the incapacity by reason of which the member was retired?
·what is the degree to which the impairments have diminished the member’s capacity to undertake the kinds of civil employment identified?
Impairments
66. The answer to the first question is not in issue. The accepted impairments which caused Mr Shingles to be discharged are his Achilles tendonitis, his alcoholism and his PTSD. The Tribunal takes into account that the accepted impairment may, in light of later evidence, need to describe the impairments in different terms than were used by the Authority in 2002.[13] In particular the description ‘mild PTSD’ may need to be revisited, taking into account the level of alcoholism that Mr Shingles was experiencing at the time of discharge. The description of the impairment may be changed only to the extent that the later evidence reflects Mr Shingles’s state of health at the earlier date.[14]
Degree to which impairment has diminished capacity
[13] Re Whiteford and the Commissioner for Superannuation (1987) 6 AAR 70 at 75-6.
[14] Re X and Defence Force and Retirement Death Benefits Authority (1980) 3 ALN No 37 at n60.
67. The more difficult question which is central to this decision is the degree to which these conditions have incapacitated Mr Shingles for civil employment. The Act does not state how the percentage is to be arrived at. However, it is well established that the decision involves a value judgment[15] and that the task of the Tribunal is to make a global assessment.[16] That global assessment, if appropriate, may need to be applied to each form of civil employment relevant to the person’s skills, qualifications and experience. In making a global assessment the Tribunal must give appropriate weight to the various considerations which may be relevant.[17] In particular where, as here, the impairments from which Mr Shingles was suffering caused different incapacities, the global assessment is based on a combination of the individual assessments.
[15] Re Thomson and Defence Force and Retirement Death Benefits Authority (1987) 6 AAR 424 at 433 per Davies J.
[16] Re Clarke andDefence Force and Retirement Death Benefits Authority [1993] AATA 502.
[17] Ex-Christmas Islanders Association Inc v Attorney-General [2005] FCA 1867.
68. The Tribunal finds that Mr Shingles was suffering from both an orthopaedic impairment and two forms of psychiatric impairment and that at least the psychiatric impairments operated independently from the orthopaedic one. To illustrate, his foot conditions incapacitated him from standing for any length of time, from heavy lifting including loading and unloading, bending, and walking. His alcoholism and his PTSD incapacitated him in relation to jobs involving interaction with others and, because of his drinking, particularly during the working day, meant he did not perform as a responsible employee in bar jobs and other positions such as furniture making, storeman, truck driving and maintenance work. The Tribunal accepts the submission of Mr Shingles that the incapacitating effect of these two forms of impairment operate cumulatively. That is, the sum of the incapacity is greater than the individual impairments.
69. The Tribunal also accepts, as the Tribunal said in Re Bos:
'Incapacity in relation to civil employment' is a wider concept than 'ability to earn income'. An 'incapacity' may be said to be 'in relation to' civil employment if the opportunities to engage in civil employment and to derive benefits from that employment are restricted by reason of the incapacity.[18]
[18] Re Bos andDefence Force and Retirement Death Benefits Authority (1977) 1 ALD 31 at 34 (Re Bos).
70. There are many benefits of employment other than earning a salary. Specifically, in this case, the capacity for civil employment includes the ability to retain as well as to obtain a job. As the Tribunal noted in Re Shelton and Defence Force and Death Benefits Authority:[19]
Taking the whole phrase 'capacity to undertake' in context we think that it should be found that that phrase as much connotes capacity to enter upon, or begin, an employment as much as it connotes capacity to perform it. The pensioner thus must have the capacity to enter upon the employment, and for this purpose he must have capacity, at least within himself, to obtain it, and he must have the capacity as well to carry on with the performance of employment as to obtain it and to enter upon it.[20]
[19] Re Shelton and Defence Force and Death Benefits Authority (1979) 2 ALD 574 (Re Shelton).
[20] Id at 592.
71. The parties have accepted that the types of civil employment which were suitable for Mr Shingles, given his limited education, training, skills, physical strength, and personality and other attributes were as a labourer/farm hand and a storeman. Mr Shingles left school at 15 and had worked as a jackaroo and a labourer. On service he was trained as a storeman. It is his incapacity in relation to each of these forms of employment which will be considered in this decision. Although Mr Shingles’s history indicates his actual employment post-service covers a wider spread of occupations, it is the types of civil employment at the time of discharge which must be taken into account. At that time, Mr Shingles’s work experience was limited. The Tribunal notes that each of these occupations involves considerable physical activity – standing, heavy lifting including loading and unloading, bending, and walking.
Level of incapacity – feet condition
72. Mr Shingles clearly suffered from Achilles tendonitis during service and was required to wear Army-issue sandshoes on patrol in Vietnam. The Medical Board report of 22 October 1971 on discharge assessed his percentage of incapacity for his feet conditions as 15 per cent and a composite assessment for the general labour market of 15 per cent also. The reclassification decision by the Authority in 2002 assessed Mr Shingles’s level of incapacity as at 27 October 1971 as 20 per cent, 15 per cent of which related to his Achilles tendonitis.
73. Despite the surgery on his heels in July 1971 while on service, in January 1972 there is a report of ‘bony spurs on each heel which are painful chronically blistered [and] that prohibit the wearing of normal footwear’. A further operation was conducted on his heels in 1976 but the conditions have persisted. Mr Shingles was wearing slippers in his work as a barman and in the medical ward post-Vietnam prior to discharge. Slippers or soft footwear brands such as Hush Puppies were his preferred method of footwear in his many occupations post-service. Accordingly, the Tribunal accepts that, despite the surgery he underwent while on service, Mr Shingles’s calcaneal spurs at time of discharge remained a significant disability.
74. For a farmhand, slippers are not an appropriate form of footwear. Heavy boots are needed for labouring work. Nor, from an occupational perspective, would slippers or soft footwear be suitable for a storeman often required, for example, to operate a forklift and move heavy boxes. There is evidence that Mr Shingles lost jobs in civilian employment because he was not wearing or could no longer, after a short time, wear occupationally appropriate footwear. In addition, his sore feet inhibited his ability to stand for lengths of time, a requirement, for example, of being a barman. Similarly, slippers and soft footwear restricted Mr Shingles’s walking, again a requirement of work as a farmhand. So although these examples occurred post-service, they throw light on the incapacitating effects of Mr Shingles’s heel conditions as at the date of discharge.
75. Medical evidence assisted the issue of assessment. Dr Conrad, in a report dated 2003, said that ‘due to [Mr Shingles’s] severe Achilles tendonitis which precluded him from wearing boots, he could not have carried out the duties of a store person, labourer or farm hand’. Dr Conrad conceded Mr Shingles might have been able to do light store work if the work did not involve ‘excessive standing, walking or going up and down stairs.’ He assessed his level of incapacity as ’20 per cent loss of efficient use of each foot’. It is not clear from this assessment whether Dr Conrad would have made a global assessment of 40 per cent, an assessment which would have been justified by the High Court’s decision in the related compensation jurisdiction in Fellowes v Military Rehabilitation and Compensation Commission.[21]
[21] Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28.
76. The Tribunal is prepared to accept the lower, 20 per cent figure for the purposes of its assessment. That acceptance takes into account the opinion of another orthopaedic surgeon, Dr Sachdev, in 2001 which assessed Mr Shingles’s feet conditions as within the 10 per cent to 29 percent impairment category. The Tribunal also notes the evidence indicates that Mr Shingles was either denied or excluded from some jobs as a store person, barman, or labourer post-service, because of his chronic feet conditions. On balance, therefore, the Tribunal finds that the level of assessment for Mr Shingles’s Achilles tendonitis is assessed at 20 per cent.
Level of incapacity – psychiatric conditions
77. Mr Shingles’s impairments at discharge were a combination of alcohol addiction and mild PTSD. The psychiatric evidence, which the Tribunal accepts, is that these were co-morbid conditions, that it was not possible to consider each independently, and that their incapacitating effects were combined. The Tribunal also accepts on the evidence that Mr Shingles may have used alcohol to mask symptoms of PTSD and that this was a reasonably successful strategy until his breakdown in the late 1980s or early 1990s.
78. Equally, the Tribunal accepts the evidence provided in the voluminous history in this matter and the evidence of Dr Mickleburgh that Mr Shingles’s ‘real problem was a very severe dependence on alcohol’. That means that even though Mr Shingles’s diagnosis of his PTSD at discharge was characterised as ‘mild’, given his addiction to alcohol at that time it was his alcohol problem that had the potential to have a predominant impact on his civilian employment, and in particular on his ability to retain such employment. That potential, as Mr Shingles’s occupational history indicates, has been realised.
79. In that context, the Tribunal accepts Mr Shingles’s evidence that his pattern of multiple, short-term employments (some 30 different jobs over 21 years, each lasting between one day to at most nine months) suggest that although he may have had a capacity to obtain civil employment, Mr Shingles’s history indicates a poor ability to retain work.
80. Counsel for the Authority argued that Mr Shingles’s work history was convincing evidence of Mr Shingles’s ability to obtain jobs and as a consequence his incapacity should be assessed as small. The Tribunal does not deny that Mr Shingles was successful in obtaining civilian employment. Nonetheless, the Tribunal has accepted that Re Bos and Re Shelton indicate that capacity for employment involves more than obtaining employment. An ability to retain jobs is also relevant, and in this regard Mr Shingles’s history is the obverse of his success in obtaining employment.
81. That raises the issue of what was the cause or causes of Mr Shingles’s inability to stay in the many jobs he obtained. Mr Shingles’s employment history indicates that it was principally his alcoholism and to a degree his unwillingness to interact with people, a symptom of his PTSD, which had a negative impact on his capacity for civil employment.
82. Counsel for the Authority argued that Mr Shingles’s pre-service employment history working in a series of short-term jobs reflected his employment pattern. The Tribunal notes that a 15 year old with limited education and few skills is unlikely to obtain regular or continuous labouring or farmhand work in country areas. Mr Shingles enlisted at 19. In the previous four years, Mr Shingles’s employment picture is of not uncommon teenage behaviour: falling in with a bad crowd, sometimes warranting police attention, until Mr Shingles made the decision to join a Carmelite monastery to train as a missionary. Apart perhaps from the last step, this is not an unusual pattern for a young, unskilled person, and the Tribunal finds it cannot be taken as an indication of an employment pattern which is likely to continue in later life.
83. The overall cause of Mr Shingles’s incapacity to retain or be retained in employment was summed up by Mr Shingles in evidence as ‘alcohol and [his] feet’. This assertion is supported by the regular pattern of Mr Shingles leaving jobs because of alcoholism or because of his feet conditions.
84. Counsel for the Authority argued that this pattern was a matter of volition – that Mr Shingles’s regular change of jobs was not due to incapacity but to disinclination. In response, the Tribunal notes that it is hard to assess motivation at any time, much less when an assessment is being made of events which throw light on matters which arose nearly 40 years earlier. Nonetheless, it does not accept the volition argument. The evidence indicates that Mr Shingles did not leave jobs, in most instances, because he did not want to work. There is a consistent pattern of dismissal for absenteeism due to his alcohol addiction, or of leaving jobs by mutual agreement because he did not fulfil the expectations of his employers due to his inability to abstain from alcohol, particularly during the working day.
85. Moreover, whether because of its effect of masking PTSD symptoms or simply because it was an addiction, Mr Shingles’s efforts to abstain from alcohol have apparently not been successful. He was drinking between 10 and 12 middies a day while in Vietnam. Immediately after discharge, Mr Shingles used to drink daily at the hotel until he ran out of money. In his sworn statement dated 6 September 1999, Mr Shingles indicates that at least 13 of the jobs he had obtained were lost because of his drinking, and this is probably a conservative estimate. Mr Shingles lost his driving licence on four occasions for driving under the influence. As a consequence he had to obtain a provisional licence to drive trucks or could only be a support driver on interstate runs. Following his last loss of licence he sold his truck. There is also evidence that Mr Shingles attended Alcoholics Anonymous for a period in the late 1970s but this did not help him control his addiction. Mr Shingles’s evidence is that is marriage and his de facto relationships broke up because of his alcoholism, in combination with his PTSD symptoms.
86. In summary, the post-service history graphically illustrates the disabling effects of alcoholism, combined with personality symptoms of the kind attributable to PTSD. These patterns were established even in 1971. Mr Shingles said he was addicted to alcohol by the time he left Vietnam. His alcohol consumption behaviour immediately post-Vietnam is indicative. There is also evidence even in 1971 of ‘agitated depression’ and of his being ‘an anxious individual’. Although the Authority on reclassification in 2002 only allocated 5 per cent impairment for a combination of Mr Shingles’s alcoholism and mild PTSD, that assessment, in light of Mr Shingles’s subsequent history, appears to be inadequate. The Tribunal notes that the failure to give greater weight to Mr Shingles’s psychiatric impairments may have been due to the absence of understanding in 1971 about conditions such as PTSD, not even classified in DSM 2 until 1980. The Tribunal can only speculate about the reason so little attention was paid to Mr Shingles’s then level of alcohol consumption. The Tribunal finds, however, that Mr Shingle’s alcoholism was already established in 1971 and he was also suffering other psychiatric symptoms which later became recognised as PTSD.
87. The psychiatric evidence is as follows. Mr Altman, who treated Mr Shingles for PTSD from 1995, said Mr Shingles’s level of incapacity, based on his use of alcohol, his aggression, his relationship problems and, post-service, his multiple jobs, was at the moderate level, between 30 per cent and 59 per cent.
88. Dr Robertson in his report in 2003 assessed Mr Shingles’s level of incapacity as 40 per cent. Dr Mickleburgh, in his report of 2006, provided a tentative assessment of Mr Shingles’s incapacity due to PTSD and alcoholism as ‘small, 10% to less than 30%’. Dr Dinnen would have assessed Mr Shingles’s incapacity as moderate that is between 30 per cent and 59 per cent. Although Dr Duncan initially said Mr Shingles’s level of incapacity would have been between 30 to 40 per cent, under cross-examination he qualified that assessment to mean that occupationally, Mr Shingles’s level incapacity would have been less than 30 per cent.
89. The Tribunal finds on the medical evidence, and in light of Mr Shingles’s post-service history, that the incapacity due to Mr Shingles’s alcoholism, in conjunction with his mild PTSD at time of discharge, would justify an assessment of at least 20 per cent. That means, in combination with the assessment for his foot condition of 20 per cent, gives an assessment of 40 per cent and moves his classification to Class B.
90. The Tribunal therefore varies the finding of the Authority of a global level of incapacity of 20 per cent, Class C, to Mr Shingles having a global level of incapacity of 40 per cent, Class B for the combination of his alcoholism, his mild PTSD, and his feet conditions.
91. The Tribunal orders the Respondent to pay Mr Shingles’s reasonable party/party legal costs and disbursements as agreed or taxed.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ........................[sgd].........................................
C. Kocak, AssociateDate/s of Hearing 19 April 2010 and 22 April 2010
Date of Decision 21 June 2010
Counsel for the Applicant Eugene White
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Andrew Dillon
Solicitor for the Respondent Australian Government Solicitor
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