Hayes and Defence Force Retirement and Death Benefits Authority
[2004] AATA 510
•21 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 510
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/506
GENERAL ADMINISTRATIVE DIVISION ) Re GARRY SCOTT HAYES Applicant
And
DEFENCE FORCE RETIREMENT
AND DEATH BENEFITS AUTHORITYRespondent
DECISION
Tribunal Ms J Cowdroy, Member Date21 May 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
J Cowdroy
Member
CATCHWORDS
DEFENCE FORCES – retirement and death benefits – entitlement – rate of pension - level of impairment – applicant retired on basis of physical conditions – applicant also suffering from psychiatric conditions – applicant’s psychiatric conditions not caused by his physical conditions – no causal connection – psychiatric conditions not relevant to calculation of rate of pension – decision affirmed
Defence Force Retirement and Death Benefits Act 1973
Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN 58
Re Greer and Defence Force Retirement and Death Benefits Authority (2001) 63 ALD 282
Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156
Re Levin and Defence Force Retirement and Death Benefits Authority (1997) 48 ALD 664REASONS FOR DECISION
21 May 2004 Ms J Cowdroy, Member 1. This document relates to an application by Garry Scott Hayes (“the applicant”) to review a decision of the Defence Force Retirement and Death Benefits Authority (“the Authority”), dated 18 May 2001, which decided to vary the decision under review by determining that pursuant to the Defence Force Retirement and Death Benefits Act 1973 (“the Act”), the applicant should be reclassified from 10 per cent Class C to 30 per cent Class B with effect from 14 March 2000 (the decision under review being the decision dated 14 March 2000 which reclassified the applicant from 45 per cent Class B to 10 per cent Class C with effect from 21 April 2000).
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T153) and documentary evidence as follows:
· Exhibit A2 Applicant’s Statement dated 21 October 2001
· Exhibit A3 Applicant’s Statement undated
· Exhibit A4 Report Dr Bruce Lawford dated 3 May 2002
· Exhibit R5 Report Dr Jill Reddan dated 8 December 2001
· Exhibit R6 Report Dr Jill Reddan dated 26 June 2002
· Exhibit R7 X-Ray and CT Scans of the Applicant
· Exhibit R8 In-Service Psychological Report of the Applicant
· Exhibit R9 An extract of Pulheems Medical Classification System
· Exhibit A10 A summary of Reports Consulted by Dr Bruce Lawford
· Exhibit R11 AAT decision: ReHayes and Comcare[2003] AATA 478
3. The applicant was represented by Ms B Nicoll of counsel and the respondent was represented by Mr B Dubé of the Australian Government Solicitor. The applicant gave oral evidence, as did Dr Bruce Lawford, Dr Jill Reddan and Dr John Morris.
Background
4. The applicant was born on 15 November 1962. He served in the Australian Army from 27 November 1979 to 3 September 1982. In 1982 he went AWOL for three months following which he was discharged. He rejoined the Australian Army from 21 February 1989 and was discharged on 12 July 1992. It was accepted at that time that the applicant was suffering from severe lumbar back pain and bilateral shin splints (T69, p171).
5. On 14 May 1993, the respondent, pursuant to section 30 of the Act, determined that the applicant’s physical and mental impairments were lumbar back pain with psychogenic pain syndrome (T85, p202). The applicant was assessed as being reasonably capable of undertaking civil employment as a clerk, storeman and factory hand (coil winder) and as having an impairment of 30 per cent (Class B), with effect from 13 July 1992.
6. On 10 February 1995, the respondent, pursuant to section 34 of the Act, reassessed the applicant’s classification and determined the applicant’s impairment with regard to civil employment as being 45 per cent (Class B) (T105, p243).
7. On 14 March 2000, the respondent again reassessed the applicant’s classification under section 34 of the Act. It was determined that the applicant’s physical and mental impairments were congenital abnormality of sacralisation of L5 with antisocial personality disorder. The respondent assessed the applicant as being reasonably capable of undertaking civil employment as a clerk, storeman and factory hand (coil winder). The applicant was reclassified as having an impairment of 10 per cent (Class C), effective from 21 April 2000 (T131, p299).
8. On 18 April 2000, the applicant requested a review of the decision of 14 March 2000 (T136, p315).
9. On 18 May 2001, the respondent determined that the applicant’s physical and mental impairments were congenital abnormality of sacralisation of L5 and major depressive illness. The applicant was assessed as being reasonably capable of undertaking civil employment as a clerk, storeman and factory labourer. The applicant’s classification was varied from 10 per cent (Class C) to 30 per cent (Class B), effective from 21 April 2000 (T151, p370).
10. On 13 June 2001, the applicant lodged an application with the Administrative Appeals Tribunal, seeking a review of this decision (T1, p2). The applicant contends he suffers from an impairment in the order of 70 per cent and therefore should be reclassified Class A.
Legislative Framework
11. Section 26 of the Act provides that where a contributing member is retired on the ground of invalidity or of physical or mental incapacity, the member is entitled to an invalidity benefit. Section 30 of the Act provides that where a contributing member is entitled to an invalidity benefit, the Authority shall determine the member’s percentage of incapacity in relation to civil employment and classify the member according to the percentage of incapacity on the following basis:
· If the percentage of incapacity is 60% or more - Class A;
· If the percentage of incapacity is 30% or more, but less than 60% - Class B;
· If the percentage of incapacity is less than 30% - Class C.
12. Section 34 of the Act provides the Authority may reclassify an invalidity recipient if it is satisfied that the percentage of incapacity in relation to civil employment should be altered. Section 34(1A) of the Act states that in determining the percentage incapacity in relation to civil employment the Authority shall have regard to the following factors only:
· The vocational, trade and professional skills, qualifications and experience of the recipient member;
· The kinds of civil employment a person with the skills, qualifications and experience of the recipient member might reasonably undertake;
· The degree to which the physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake those kinds of civil employment; and
· Any such matters that are prescribed for the purpose of the subsection.
13. Section 34(1B) of the Act defines “prescribed physical or mental impairment” as a physical or mental impairment of the member that was the cause, or one of the causes of the invalidity or physical or mental incapacity resulting in the member’s retirement or any other physical or mental impairment causally connected with a physical or mental impairment of the member that resulted in retirement.
Evidence
The Applicant
14. The applicant had been in receipt of a TPI pension from the Department of Veterans’ Affairs on the grounds of permanent incapacity for work since 1994. He has not worked since his discharge from the Army. He considered the reasons upon which he was determined to be below medical standard upon discharge was because of his back condition, his legs and his "psychological condition". He understood the rating of 8 (medically unfit for any form of service) for “P” in the PULHEEMS Medical Classification System to be referrable to "psychological", rather than "physical capacity". He considered that his physical disabilities had virtually ended his career in the Army and that he had been suffering from a psychiatric condition at the time of his discharge.
15. He considered he had been victimised and discriminated against whilst in the Army, at the hands of both his peers and his superiors. He had a particularly difficult time whilst posted at 1 RTB (Recruit Training Battalion). He considered he should have been given counselling, and if he had known about his psychiatric problems during service, he would have sought treatment. He did not become aware that he was considered to have a psychiatric condition until after his discharge. He referred to a Redress of Grievance which he lodged on 12 August 1991, which was not processed within a reasonable time and that he lodged a further Redress of Grievance on 10 December 1991. Part of that grievance referred to what he perceived as inadequate assessment and treatment for his medical conditions.
16. He recounted a history of depression since his Army service. After leaving the Army, he lived with his mother. He had a breakdown and he was admitted to Greenslopes Hospital. Since that time there have been other admissions to hospital for emotional problems. In 1996, he consulted Dr Lawford, psychiatrist, who he has continued to consult on a regular basis. He acknowledged that there are times when he appears to function reasonably well, but that he also has bad periods when his concentration is very poor.
17. He accepted that the kinds of civil employment he could undertake with his skills, qualifications and experience to be coil winder, ship's cook, storeman or clerk. However, he could not now perform work as a coil winder as it involves heavy lifting and requires two people. He considered that coil winding also requires considerable concentration which he lacks and he referred to concerns about workplace safety. He could not perform work as ship's cook as that position requires standing and heavy lifting. He did not think he could cope with the long hours and the times away at sea. He could not perform storeman work because that involved handling deliveries. He could not perform any regular work such as a clerk, because of his concentration problems. He suffers from lack of sleep, tiredness and lethargy.
18. He acknowledged that he sought treatment in 1985 from Dr Chaplow, psychiatrist, who provided grief counselling, following an incident when a man slipped overboard and was swept out to sea. The man's wife blamed him because he was unable to save him. He had neglected to advise some of the other psychiatrists he had consulted over the years about this earlier treatment, because he had seen so many doctors in the past 10-20 yeas that it was "hard to keep track".
19. He denied that he had been refused entry into the Royal Australian Navy in 1985 because of severe joint pains in his knees and the record to this effect at T9-11 is incorrect. He described the author of that document as a person who referred to him as a coward.
20. He re-enlisted in the Army in February 1989 and, by April of that year, he was suffering from pain in both legs. He said at that time he was also suffering from pain in his back which he reported, but "no-one wrote it down". He was sent for x-ray on 9 October 1989, the results of which were described as NOAD (“no abnormality detected”) (T23-27). He did not consider that the various medical practitioners in the service that he had consulted had fully and accurately documented his symptoms, nor was he given appropriate treatment. He referred to instances where he performed physical activities whilst he was under medical restrictions.
21. He underwent a fasciotomy in 1990 and he was frustrated that he had not made a full recovery. He considered that he had been cleared to return to work before he had adequately recovered from the surgery. He considered that from that time, the Army had determined to discharge him because of his physical limitations. Even though he was given work as a clerk, he considered the Army had no use for him. He acknowledged that part of this perception was attributable to the fact that he could not be in the infantry, which was where he saw his long term future prior to his injuries.
22. He acknowledged that by September 1991, he considered that he had no future in the Army. He attributed this to both his physical and mental disabilities. When he told Dr Morris, orthopaedic surgeon, in 2000 that he could not handle the stress of being a clerk, he was referring to the physical demands of going up and down stairs. Despite the fact he received a complimentary performance appraisal of his work as a clerk from Major Wilson in April 1992, he pointed out that that whilst he was able to work as a clerk at the time of discharge, "it doesn’t tell you how many hours".
23. His admission to hospital in 1996 was attributable to the breakup of a relationship. He also went AWOL at the age of 19 years in 1982, as a result of a relationship problem.
Dr Lawford
24. The Tribunal had before it two reports of Dr Lawford, consultant psychiatrist, dated 22 October 1999 and 3 May 2002. In his report dated 22 October 1999 (T124, p269-270), Dr Lawford states that the applicant suffers from recurrent major depressive disorder. The onset of the condition was 1990-91 and was continuing at the time of the report. The applicant had been prescribed antidepressant medication but continued to suffer from recurrent depressive moods.
25. He stated that these depressive moods adversely affected the applicant’s concentration, memory function, confidence, energy and motivational levels. When experiencing a depressive episode the applicant suffers from hypersomnolence and at times spends approximately 24 hours in bed. He states that the applicant’s ability to undertake remunerative work is severely compromised and he has been unable to work since his discharge from the Army in 1992. As a result of his recurrent depressive disorder the applicant’s impairment was assessed as being 70 per cent. Dr Lawford was of the opinion that the applicant’s condition was permanent and unlikely to improve or deteriorate.
26. In Dr Lawford’s subsequent report dated 3 May 2002 (Exhibit A4), he disagreed with the opinion of Dr Reddan that the applicant’s major depression was in remission. He states the applicant endorsed a significant number of somatic complaints and items related to associated neurovegetative disorders and had an elevated depression scale. He did not believe that it was appropriate to utilise a particular tool (MMP1) for diagnostic purposes. He referred to the fact that patients can have elevated results on those scales and still not suffer from a recognisable psychiatric condition. He considered that it was somewhat “old fashioned” to describe depressive disorder as being in remission as essentially, that term only describes a situation where there is a relative reduction in symptoms.
27. He disagreed with Dr Duke’s diagnosis of personality disorder, acknowledging that such a disorder was enduring and had a genetic basis. He agreed that an episode of AWOL in 1982 could be an indicator of personal problems, however whilst it demonstrated a lack of judgment, it was not necessarily outside the range of normal behaviour. He was aware that the applicant had consulted Dr Chaplow in 1985 for counselling and that Dr Chaplow had described the applicant as suffering from adjustment disorder with depressive features. Dr Lawford pointed out that such a situation was formerly described as a “situational crisis”, where treatment is sought because of a specific event that has occurred.
28. The applicant had informed him that he had injured himself within three or four months of his second period of service, which caused a cessation of sport.
29. He had reached a figure of 70 per cent on the basis that, although the applicant had periods of remission of symptoms, he was still quite impaired during these periods; he was socially isolated and exhibited considerable social dysfunction even in periods of relative wellness. There have been quite a few discrete episodes of depression, even whilst the applicant has been taking anti-depressants. If the applicant has a depressive episode, it is likely to occur without warning, consequently this would cause major impediments for successful employment. This is of some significance, given that once there has been three major episodes of depression, there is a 100 per cent chance that they will re-occur. He had not treated any patient with severe depression who had worked full-time. He had particular expertise in the treatment of veterans with post traumatic stress disorder, most of who either restrict their employment or do not work at all.
30. Dr Lawford stated the applicant tends to ruminate and brood about his problems and he endorsed items suggesting he feels dysphoric, anxious and lacks motivation. He states that the applicant is socially isolated, avoids relationships and lacks motivation to be involved with people. He concluded that the applicant is suffering from recurrent major depressive disorder, which is a chronic disorder often characterised by inter-episode psychosocial dysfunction. He was of the view that the disorder will re-occur and the applicant would require a permanent course of medication.
31. He considered the applicant’s present psychiatric condition had its genesis in 1991, when, because of his orthopaedic problems, the applicant was medically downgraded and lost his career in the Army. Prior to that time the applicant had given reasonable service in the Army, apart from the one episode when he went AWOL in the first period of service. He also performed satisfactorily in the Reserves. After he re-enlisted, he performed quite well until 1991.
32. He had seen the letters from Dr Chaplow. He had first described the applicant as suffering from depression, which he thought, was adjustment disorder with depressed mood. Dr Chaplow had also referred to problems with the applicant’s father and Dr Lawford considered that it was “pretty normal” to be upset.
Dr Rees
33. Dr Rees, consultant psychiatrist, provided a report dated 7 August 2000 (T145, p327-332). He diagnosed the applicant as suffering from recurrent major depressive disorder. He was of the opinion that the applicant’s physical pain and fluctuating depression results in a significant reduction in his ability to concentrate or attend to duties. He assessed the applicant as having an impairment of approximately 70-75 per cent. He stated that the impairment was unlikely to improve and may deteriorate with deteriorating function in his orthopaedic injuries.
Dr Reddan
34. Dr Reddan, consultant psychiatrist, provided two reports dated 8 December 2001 (Exhibit R5) and 26 June 2002 (Exhibit R6). In her report dated 8 December 2001, Dr Reddan opined that the contemporaneous records suggests the applicant was experiencing frustration, disappointment and anger states at the time of discharge from the Army. She states that it is unclear as to whether the dysphoric moods reported at the time were to be expected given the overall nature of the applicant’s circumstances, specifically his impending discharge from the Army, or whether the applicant was suffering from an adjustment disorder.
35. With regard to whether the applicant was suffering from a recognisable psychiatric condition, Dr Reddan states the applicant has more recently attracted a diagnosis of major depression, and first received psychiatric treatment in approximately 1996. She says that the applicant may well have suffered from episodes of major depression. However, as at 13 November 2001, the condition was in remission. She opined the applicant’s personality problems include dependent, passive aggressive and narcissistic traits.
36. As to whether the applicant’s psychiatric condition affects his ability to work, Dr Reddan stated that, during an episode of major depression, the applicant’s depressed mood and neurovegetative disturbance would impair his capacity to concentrate, such that his ability to undertake remunerative work would be temporarily impaired. However, she said that the degree of impairment is difficult to answer and is dependent on many factors such as the severity of an episode.
37. Dr Reddan provided a subsequent report dated 26 June 2002. She states that major depression can re-occur, but the applicant’s episodes of depression have not been at the severe end of the spectrum and his patten of treatment would suggest that the antidepressant medication is providing adequate maintenance of his condition.
38. She further stated the applicant’s depressive illness does not incapacitate him from civil employment indefinitely, but may do so during a depressive episode. During an episode Dr Reddan says the applicant’s level of impairment would rise to approximately 20 per cent and likely to be of a moderate capacity.
39. In her oral evidence Dr Reddan expressed the view that the applicant was a very practiced interviewee, who had answered similar questions asked of him many occasions before and that his answers were "rote like". She formed the view that he was controlling of both the questions and answers.
40. She had seen the report of Dr Lawford dated 3 May 2002 and his comment that the MMP1 did not support her contention that the condition was in remission. She believed that a clinician could not infer a diagnosis from self-reporting and that the MMP1 was an invaluable tool. She would have liked to have performed a urinary drug screen but was instructed not to do so.
41. She described frustration, disappointment and anger as “human emotions we all face”. Whilst a sense of frustration can occur in depressive disorder, in itself, it is not diagnostic of anything in particular. The anger that Mr Hayes portrays stems from his perception as to what has occurred. She believed that depressive disorder is not solely explicable by reference to the applicant’s leg pain, but that it was a more complex scenario. The applicant had an episode of major depression in 1996. After writing her report, she obtained further information, in the form of the clinical notes from Toowong Hospital in which it is stated that the applicant reported a breakdown in a relationship.
42. She accepted that pain the applicant’s back and legs since 1989 at times may have had some involvement, however she did not believe it was a major determinant in his psychiatric presentation.
Dr Morris
43. Dr Morris has provided two reports dated 7 January 1993 (T75, p181-183) and 20 January 2000 (T129, p280-284). In his first report Dr Morris assessed the applicant as suffering an incapacity of less than 30 per cent, Class C. He considered the applicant as capable of working as a clerk, storeman, factory hand or coil winder and as suffering a disability of less than 10 per cent.
44. In his subsequent report Dr Morris stated that apart from a lack of flexion he could find no other abnormality in the applicant’s spine. He found the applicant to be suffering from congenital abnormality of sacralisation of L5 on the left side. Dr Morris assessed the applicant as being capable of undertaking work as a clerk, storeman and factory hand (noting he may not be able to undertake heavy lifting) with a minimal disability of less than 10 per cent.
45. He opined that the applicant’s incapacity was not related to an orthopaedic condition but related to an inability to cope with life and stress.
46. In his oral evidence Dr Morris described the applicant’s presentation on examination as “bizarre” with “several inconsistent features”. He stated that people who grimace in extreme pain when performing relatively easy tasks but then can bend over and touch their toes, is characteristic of an exaggeration of symptoms. When he asked why the applicant could not work as a clerk, he expressed the view that he was unable to do so because he could not handle stress.
Submissions
47. The applicant considered that the decision under review was that made upon review, namely 18 May 2001. The effect of the medical evidence from various sources is that the applicant suffers from a major depressive disorder, in which of which his incapacity is "large".
48. It was pointed out that the Authority had determined that Mr Hayes' retirement impairment was congenital abnormality of sacralisation of L5 and major depressive illness (T151-364) in the reconsideration dated 18 May 2001. Dr Hall, who examined the applicant on 15 April 1993, in response to a request from the Authority, assessed the applicant as having a psychogenic pain syndrome.
49. Although various diagnoses have been provided to describe the applicant’s psychiatric condition, there is evidence that upon leaving the Army, the applicant had a psychiatric condition which was not present on enlistment. The DFRDB has recognised that the applicant developed a psychiatric condition by the time he left the service and that it was one of the reasons for his retirement. Such a condition was first recognised in 1993 when the applicant was assessed for his first pension.
50. Relying substantially on the reports of Dr Lawford and Dr Rees, such incapacity is presently in the order of 70 per cent in which case a Class A pension is warranted.
51. The respondent contended that the primary decision before the Tribunal is that dated 21 April 2000, and referred to Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN 58 in support of that contention.
52. The prescribed physical or mental impairment by reason of which Mr Hayes was retired needs to be determined, and is a matter which should be reviewed by the Tribunal, before determining the degree of incapacity. In particular, the Authority does not concede that a psychological condition forms part of the retirement impairment. The appropriate test is not what condition in respect of which the person should have or could have been retired, but the actual impairment in respect of which that person was retired. The evidence is that Mr Hayes was retired because of a physical condition.
53. In Re Greer and Defence Force Retirement and Death Benefits Authority (2001) 63 ALD 282, Deputy President Forgie made the observation that where there is a clear statement of the incapacity in respect of which a person was retired and the statement is made by the body which made the decision, this will be strong evidence of the incapacity. In the present matter, whilst there had been some treatment for psychological problems prior to the final medical board, it is clear that the medical opinion as to the retirement incapacity is lower back pain.
54. The respondent acknowledged the possibility that by 1992 the applicant had an adjustment disorder, however in terms of the Army agreeing to discharge the applicant, it is clear it took into account his physical limitations only. Further, it agreed to discharge him because he was not satisfied with the steam of service in which he would have had to continue serving.
55. The prescribed impairment is that of lumbar pain and shin splints. If the Tribunal makes that finding, then the only other manner in which a psychiatric impairment could be taken into account is for it be found to be a causally connected condition pursuant to section 34(1)(B)(b). In assessing whether the applicant's physical condition is linked with his psychiatric condition, it is significant that the applicant does not refer to back or leg pain in his consultations with Dr Lawford.
56. The applicant's evidence and the documents before the Tribunal portray the applicant as a person who has a pre-occupation with what he perceives to be harsh treatment, victimisation, and inappropriate medical treatment at the hands of the Army. Even if the applicant has a psychiatric condition which is in some way connected to this sense of injustice, it does not meet the causal connection test.
57. On the basis that the prescribed impairment relates to back pain and shin splints only, then the only evidence as to the applicant's physical limitations is that of orthopaedic surgeon, Dr Morris, who opines there is impairment equivalent to a level of 10 per cent. The applicant should be properly classified Class C. However, if the Tribunal was to find that there was a psychiatric condition which was either a retirement impairment or a causally connected impairment, then such impairment falls within the Class B range, of between 30 and 60 per cent.
Consideration
58. The manner in which the provisions of section 34(1A) of the Act are to be applied was considered by the Full Federal Court in Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156 at 160:
“The provisions of s34(1A) are similar, but not precisely the same as the provisions of s30(2) earlier referred to. It is to be observed that the matters specified in s34(1A) as the matters to which the Authority is to be concerned. The subsection is exhaustive in this regard. It is also to be observed that because of the definition of ‘prescribed physical or mental impairment’ in s34(1B) a member may be reclassified at any time and may be reclassified so that he is found to have either a greater or lesser degree of incapacity than was previously the case. That is because the definition in s34(1B) takes one back to the physical or mental impairment that was the cause of the original invalidity or physical or mental incapacity by reason of which the member was retired. It follows that the Authority is always obliged to look at the current capacity of a member and reach a conclusion on the degree to which the original physical or mental impairment which caused his incapacity has diminished his capacity for civil employment.”
59. The Tribunal’s task is to review the primary decision to reclassify the applicant as Class C from 21 April 2000 rather than any reconsideration of that decision. The Authority, in considering the application of section 34(1A)(a) of the Act, assessed the applicant to have vocational, trade and professional skills, qualifications and experience as a clerk, storeman and factory hand (coil winder). The Authority determined, in accordance with section 34(1A)(b) of the Act, that the kinds of civil employment which a person with such skills, qualifications and experience might reasonably undertake to be a clerk, storemen and factory hand (coil winder). The applicant did not object to the inclusion of these kinds of employment and the Tribunal finds accordingly.
60. In determining the issue of retirement impairment, the Tribunal was mindful of the guidance provided by Deputy President Forgie in Re Greer (supra) (at par 33):
“Where there is a clear statement of the incapacity or incapacities because of which a person was retired and that statement is made by the body which made the decision, that will be strong evidence of the incapacity. That, however, is not always the case and regard will then need to be had to less direct evidence. Among that evidence may be contemporaneous medical reports, minutes of supervisors and statements of the person concerned. There may also be evidence in the form of subsequent statements by the employing agency as to what were the reasons for the earlier retirement and from the body with responsibility to make the decision to retire a person. From whatever source the material is gathered, it is all directed to determining the invalidity or physical or mental incapacity because of which a person was retired. The focus is not upon the invalidity or physical or mental incapacity upon which a person could, or should, have been retired. The focus is upon those invalidities, physical or mental incapacities upon which he was retired.”
61. The reference to invalidity or physical or mental capacity by reason of which Mr Hayes was retired is a reference to his capacity for work in the Army. The term "retirement" is defined to include discharge, as was the case with Mr Hayes. At T61-157, which is a medical board examination record on 8 July 1992, it is recorded that the applicant had:
"Very limited movement of back in all directions. I think he has definite low back pains and probably was caused by carrying of logs for PT. Even if there is an overlay these are basic problems. He would be unfit for any Army position.”
62. Under the PULHEEMS Medical Classification System, the applicant was given 8 for physical and ratings of 2 for each of mental capacity and stability which equates with an average rating. It does not, as Mr Hayes was keen to assert, refer to psychiatric disability.
63. The final medical board report, which is undated but was confirmed on what appears to be 16 September 1992 (T66-164), describes the applicant’s problems as pain in shins and constant low back pain. At T68-170, the physical or mental impairments that are said to be the cause of the invalidity or physical or mental incapacity by reason of which the member has been retired are described as "severe lumbar back pain" and "bilateral shin splints". There is no suggestion at that time that the applicant was suffering from any impairment of a psychiatric nature, although he was described as resentful and angry with a "very significant functional and emotional overlay to the whole clinical picture" on 15 May 1991 (T48-64), and a possible hysterical conversion reaction and "functional overlay" is said to be present on 12 November 1991 (T54-75).
64. Dr J H Morris, orthopaedic surgeon examined the applicant for the purposes of assessing his claim for invalidity provisions and his report at T75-181 shows a congenital narrowing of L5-S1 disc. He described any injury to the applicant's back as a muscular type of injury. His x-rays did not show any recent evidence of injury. Dr Morris assessed his disability as minimal, less than 10 per cent. Because of the suggestion that a psychological overlay was present, the applicant was referred to a psychiatrist, Dr R T Hall, who provided a report on 22 April 1993 (T84-200).
65. Dr Hall considered that Mr Hayes had a psychogenic pain syndrome and stated relevantly: "I see this as part of his lumbar back pain". However, it would appear that when Dr Hall makes the comments that there are significant limitations as to manual work, he understands there to be demonstrable physical limitations. Given that Dr Morris, with expertise in orthopaedics, had provided an opinion which conflicts considerably in terms of the severity of the applicant's back problems, Dr Hall's very brief report, which is based exclusively on reports of symptoms by the applicant, is not, to the Tribunal's mind, a report which should be accorded much weight.
66. This calls into issue the question of whether at discharge the applicant as suffering from any psychiatric condition, and more importantly, whether it was an incapacity upon which he was retired. The Authority's determination on 17 May 1993 (T86-203) describing the impairments which caused the applicant's retirement as lumbar back pain (with psychogenic pain syndrome) obviously had regard to Dr Hall's report. Subsequent determinations have changed lumbar back pain to congenital abnormality of sacralisation of L5 with antisocial personality disorder and antisocial personality disorder has been reclassified as major depressive illness.
67. Regardless of the diagnosis of the applicant's psychiatric impairment, the issue ultimately turns on whether such psychiatric condition falls within the criteria of a prescribed impairment or a causally connected condition.
68. There can be little doubt, in the Tribunal’s view, that the applicant was discharged because of his physical limitations in regard to a back condition, and possibly some contribution from bilateral shin splints. The Tribunal placed considerable weight on a report of Col Peter Grant dated 26 March 1992 when he considered that he applicant could not be made MU at that time. He referred to the fact that the applicant was carrying out the duties of a clerk very satisfactorily. The decision to find the applicant as MU at some later stage is clearly referrable to his ongoing chronic pain and not to any psychological or psychiatric condition.
69. The Tribunal then considered whether the applicant's psychiatric condition, which has been described in various terms, is a causally connected condition. This aspect was discussed at some length in Re Levin and Defence Force Retirement and Death Benefits Authority (1997) 48 ALD 664 at 682, where Deputy President Forgie and Member K P Kennedy stated:
“Whether one impairment has a causal connection with another impairment within the meaning of s 53(1B)b), the question must be whether one impairment can be said to be associated or linked with one another so that one can be said to be an effect or consequence of the other.”
70. The respondent suggested that the evidence raised the prospect that the applicant has had a psychiatric condition of some sort or another at least since 1985, if not earlier. It pointed to the applicant's absence without leave in 1982, which it was said, was indicative of some emotional problems, and the fact that the applicant consulted Dr Chaplow in regard to stress and depression in 1985. Dr Lawford considered that the incident when the applicant went absent without leave is something which is not of itself a significant indicator that he had a psychiatric problem, and the Tribunal agrees. Nor is the fact that the applicant had some sessions with a psychiatrist, following the loss of a friend, of itself, indicative of a psychiatric condition.
71. However the evidence strongly supports a finding that the applicant's psychiatric condition, (and depressive disorder seems to be the general medical opinion on diagnosis), is due to a keen sense of grievance with the Army, rather than in any way connected with his physical limitations. It is of considerable significance that the applicant has not raised the issue of chronic pain with Dr Lawford, despite the fact that he has consulted him on a regular basis for many years. Given that scenario, it is difficult to accept his opinion that the applicant's problems had their genesis in his orthopaedic problems.
72. The Tribunal notes that Dr Lawford acknowledges a contribution from the applicant's medical downgrading and his perception of the loss of a career. However, those matters would not permit a finding that the psychiatric condition from which the applicant presently suffers, are causally connected to his prescribed physical impairments.
73. Dr Reddan considered that pain in the applicant's back and legs was not a major determinant in the applicant’s psychiatric presentation but it was due to a range of factors, including his anger, frustration and disappointment at what he considered as unjust treatment at the hands of Army personnel. The evidence is strongly supportive of the contention that the exacerbations in the applicant's psychiatric presentation arise in the context of his reaction to stressful life events, including the breakup of relationships. Again, such considerations do not constitute matters that would enable a finding that the psychiatric condition is connected to the applicant's prescribed impairments.
74. The Tribunal noted also that, in the Authority's determination dated 10 February 1995, in referring to the applicant's causally connected impairment, it made the following comments:
“Dr Slaughter in his report of 23 Nov 1994 says that Mr Hayes' intense angry feelings towards his senior soldiers and the doctors who treated him in the Army further restricts his capacity to manage at the present time and he would this (sic) to be causally connected impairment.”
75. The theme of poor treatment and injustice at the hands of the Army is a recurring theme. Dr Rees opines that the applicant's onset of major depression finds its aetiology not simply in the ongoing and severe pain that he feels from his orthopaedic injuries, but that he felt significantly failed by the Army (T145-331).
76. Ultimately the Tribunal was reasonably satisfied that any psychiatric condition, however described, and irrespective of whether such is in remission, is not causally connected to the applicant's prescribed impairments of lumbar back pain and bilateral shin splints.
77. This leaves then consideration as to the appropriate classification for those conditions. The only evidence on this aspect is that of Dr Morris who considers that there is impairment in the applicant's ability to undertake the kinds of employment referred to earlier, in the order of 10 per cent. The Tribunal accepts this opinion and accordingly finds that with effect from 21 April 2000 the applicant satisfies the requirements for a Class C pension.
78. This being the case, the Tribunal affirms the decision under review.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Sarah Oliver
AssociateDates of Hearing 10 and 11 June 2003
Date of Decision 21 May 2004
Counsel for the Applicant Ms Carter-Nicoll
Solicitor for the Applicant Gilshenan & Luton
Counsel for the Respondent Mr Dubé
Solicitor for the Respondent Australian Government Solicitor
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