House and Defence Force Retirement and Death Benefits Authority
[2011] AATA 707
•12 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 707
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500505
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID RICHARD HOUSE Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date12 October 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............Signed...............
Deputy President
CATCHWORDS
DEFENCE AND WAR – Defence forces – Benefits – Defence Force Retirement and Death Benefits Authority – personality disorder and alcoholism both prescribed impairments – extent of diminution of capacity to undertake civilian employment attributable to prescribed impairments in the range of 10% to 15% – decision under review affirmed
Defence Force Retirement and Death Benefit Act 1973 (Cth), ss 26, 30, 34
REASONS FOR DECISION
12 October 2011 Deputy President P E Hack SC Introduction
This matter is, regrettably, a further re-hearing of an application by Mr David House to review a decision of the respondent, the Defence Force Retirement and Death Benefits Authority, made on 14 March 2005 (and confirmed on reconsideration on 1 August 2005) to reject Mr House’s application to vary his classification for the purposes of the Defence Force Retirement and Death Benefit Act 1973 (Cth) (the Act).
The application is before me following an appeal and an order of the Full Court of the Federal Court that an earlier decision I made[1] be set aside and the matter remitted to be decided again subject to certain directions, including a direction that the matter be decided “without the hearing of further evidence”. The further hearing is confined to a narrow issue. The parties have made further written submissions but do not desire any further opportunity to make oral submissions.
[1] See Re House & Defence Force Retirement and Death Benefits Authority [2010] AATA 147
To the extent that it is necessary to understand what remains to be determined on this remitter some of what follows repeats what was said in the earlier decision. I do not, however, need to repeat much of the uncontroversial background which is set out in that decision.
The legislation
By virtue of s 26 of the Act, where a “contributing member” is retired on the ground of invalidity or of physical or mental incapacity to perform duties, the member is entitled, on retirement, to invalidity benefits in accordance with Part V of the Act. Where a member is, or is about to become, entitled to invalidity benefit the Authority is required by s 30 of the Act to make an initial determination of,
“…his percentage of incapacity in relation to civil employment and…classify him according to the percentage of incapacity as follows:
Percentage of incapacity Class 60% or more A 30% or more but less than 60% B Less than 30% C
Once that initial determination has been made the Authority may reclassify in accordance with s 34(1) of the Act. That provides:
“(1)The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.”
In determining the percentage of incapacity, the Authority is obliged by s 34(1A) of the Act to,
“…have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the recipient member;
(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 recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);
(d) such other matters (if any) as are prescribed for the purposes of this subsection.”
The expression “prescribed physical or mental impairment” is defined in s 34(1B) in these terms:
“(1B)In subsection (1A), prescribed physical or mental impairment, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:
(a)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 by reason of which the member 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 member causally connected with a physical or mental impairment referred to in paragraph (a).”
As Logan J pointed out[2] on the appeal, the word “or” acts as a connecting conjunction between paragraphs (a) and (b) of this definition.
[2] House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72 at [169].
Background
Mr House served in the Australian Army from October 1968 until his discharge in May 1975. There have been many proceedings in the Tribunal and the federal courts concerning Mr House’s impairments and the incapacity resulting from them. It is not necessary for present purposes to do more than note that, as the result of a decision of the Authority in July 2001 (affirmed by the Tribunal on 29 June 2004[3]), Mr House was classified as Class C on the basis that his percentage of incapacity was 20% and to note, as well, that prior to the most recent decision the only prescribed physical or mental impairment was alcoholism. As a consequence of the most recent hearing and the appeal Mr House’s personality disorder is also to be regarded as a prescribed impairment.
[3] See [2004] AATA 667; (2004) 83 ALD 792.
These proceedings have their genesis in a request made by Mr House to the Authority on 19 November 2004 by which he sought a review of his classification. On 14 March 2005 the delegate of the Authority rejected the request. The decision was confirmed on reconsideration in a decision sent to Mr House on 1 August 2005. It is the decision, later confirmed on reconsideration, which is the subject matter of this application.
The earlier decision
In my earlier decision I accepted that Mr House suffered, relevantly, from two conditions – alcoholism and personality disorder. The former had been accepted as a prescribed impairment, the latter had not been. In my reasons for decision I accepted evidence that suggested that the alcoholism was causally related to the underlying personality disorder[4] however I overlooked the operation of s 34(1B) of the Act and, in particular, the connecting conjunction between paragraphs (a) and (b) of it. That, as the Full Court held, was an error of law. The consequence of that error was that, when considering the extent to which Mr House was incapacitated from pursuing the various categories of civil employment, it was not as clear as it ought to have been whether I had considered only alcoholism or both alcoholism and personality disorder.
[4]At [29].
There is no controversy about the kinds of civil employment to be considered. They are: delivery driver and truck driver, mobile plant operator, storeman, mining or construction labourer and security officer although slightly different descriptions are used in the material. The task now, following the remitter of the matter from the Court, is to consider the effects of Mr House’s personality disorder and his alcoholism upon the capacity of a person exhibiting Mr House’s vocational, trade and professional skills, qualifications and experience, to reasonably undertake the kinds of civil employment that have been found by the Tribunal in the relevant classes of civil employment.
The parties, as I have said, have lodged supplementary submissions in accordance with the Court’s direction.
The effect of the impairments
The submissions for Mr House, which at least had the advantage of brevity, focussed on evidence given by Dr Jill Reddan[5], a consulting psychiatrist, that Mr House demonstrates inflexibility, marked grandiosity and sense of entitlement. These features, it is said, adversely affect his “soft skills”, “skills which are of fundamental importance to the question of his incapacity to undertake the relevant types of employment”[6]. Attention was drawn to the following passage from the evidence of Dr Reddan[7],
“What often happens, though, is that when difficult circumstances occur in an individual’s life, their personality problems become more manifest, and that sometimes gets confused with exacerbation, but it’s because they’ve got personality problems that they don’t deal with difficult or stressful circumstances in a particularly adaptive way, and that’s why it can appear that it’s worse, when in fact it’s not. Also, people with significant personality problems are more likely to encounter difficult or stressful circumstances, because they inadvertently often create them for themselves. If I could think of a good example: some people who, perhaps, at work can’t get on with anyone; they might not get on with anyone at home, either, and the people at work might try to get them to, you know, be more of a team member, or whatever, and that – the person with the personality problem perceives that as stressful because they can’t see the inherent problems in themselves with how they get on with others. So it’s often when they perceive themselves to be under stress that their behaviour or their functioning appears worse, but it’s really just the natural history of an individual with a personality disorder.” [emphasis in the applicant’s submissions]
[5] Report of 22 June 1997.
[6] Submissions, 16 September 2011 at [3].
[7] Transcript 11 July 2003, pages 52-3.
The two incapacities, Mr House submits, cause him a “large” incapacity to undertake the relevant types of civil employment such that his appropriate classification is Class A.
The submissions for the Authority refer back to the decision of the Tribunal in June 2004[8] where an incapacity of 20% (without regard to personality disorder) had been found. The Authority acknowledges that that Tribunal was likely to have found a higher level of incapacity had personality disorder been considered. But the Authority goes on to refer to later evidence of Dr Reddan setting out her views about the level of incapacity, resulting from psychiatric impairments[9] and some oral evidence of Dr Reddan to the effect that Mr House was, at that time, less impaired than he was in 2001.
[8] [2004] AATA 667; (2004) 83 ALD 792.
[9] Report of 1 June 2007
In my earlier decision[10] I set out at length the evidence that touched upon the question of incapacity arising from prescribed impairments and what that evidence said of the relevant consequences to Mr House’s capacity from the impairments. It has not been suggested by either party that there is other evidence to which regard ought be had. What I said there was as follows:
“[43]There has been a tendency, with the evidence in this case, to have the witnesses express conclusions about the percentage of incapacity by reference to particular occupations or otherwise express opinions about the ultimate issue that I have to determine. Thus Dr Reddan has provided an assessment of the extent to which Mr House’s psychiatric impairment has impaired his capacity to undertake particular occupations. Ms Rowe, the occupational therapist, has determined, for the reasons that she has expressed, that Mr House is “not a match” for any of the occupations that she regards as being relevant. As it seems to me, the first step is to consider the evidence that touches upon the question of incapacity arising from prescribed impairments to examine what that evidence says of the relevant consequences to Mr House’s capacity from the impairments.
[44]It seems logical to start by reference to the June 2004 decision which concluded that Mr House’s level of incapacity was 20%. As the Authority points out, it is a notable feature of this case that, on one view, the evidence demonstrates that Mr House’s level on incapacity ought to have reduced rather than increased. He no longer abuses alcohol, he is in a quite stable relationship in which he acts as a carer for his spouse and he performs voluntary work assisting blind people on a regular basis albeit with a recent, brief break . Those matters, it might be thought, suggest a marked improvement rather than a worsening of his capacity.
[45]Nevertheless, it is necessary to look at the evidence that touches upon the question.
[10] At [43] – [54].
The evidence of impairment
[46]As long ago as 1992 Mr House was assessed by Ms Maureen Field, a clinical neuropsychologist. Her report of 21 January 1992 described cognitive impairments in several areas including “significant memory impairment”. A further neurological assessment of Mr House was undertaken by Ms Chris Schumann in March 2007. Her report of 17 April 2007 described Mr House’s memory as being “moderately impaired for immediate recall and learning”. She also noted “a retrieval deficit, which was consistent with his history of chronic alcohol excess”. Her testing indicated the following problems:
‘1) Moderate depression,
2) Mildly slow processing speed on some tasks,
3) Mild verbal fluency deficit,
4) Memory problems that included:
a. Moderate retrieval deficit,
5) Executive problems that included:
a. Mild conceptual shifting problems,
b. Mild to severe planning and organising deficit,
c. Mild to moderate visuo-perceptual organization deficit.’
[47]Importantly, Ms Schumann described the test results as consistent with previous neuropsychological assessment in 1992. In her oral evidence from July 2007 Ms Schumann agreed with the proposition that there had been no change between 1992 and 2007.
[48]I should also observe that Dr McGuire commented in her report of 19 April 2006 that there ‘were no obvious cognitive deficits’. That accords with my observations of him, albeit briefly, in the witness box and in the quality of the written material produced by Mr House. The material demonstrates that Mr House appears quite able to argue his case which he does with a considerable degree of logic and a considerable grasp of the detail of evidence given in hearings going back over 15 years.
[49]The extent of Mr House’s memory deficits were the subject of a more recent report by, and evidence from, Dr Philip Morris, a consultant psychiatrist. Dr Morris said this:
‘On examination on various occasions he has been cooperative and showed no obvious distress. His speech shows difficulty with verbal fluency, and with word finding difficulties. His speech is coherent. His affect showed good range and was appropriate. His mood was euthymic. No psychotic features were noted. He does not have any suicidal or homicidal intent now but has had suicidal thoughts in the past. He has been alert on all assessments. His is of average intelligence. His judgement and insight are preserved. Cognitive examination using the Addenbrooke Cognitive Exam revealed problems with verbal memory recall and impaired phonemic verbal fluency. The remainder of his cognitive functions, including attention and orientation, language and visuospatial capacities were impaired. His mini mental state exam score was 29/30 and his ACE-R score was 96/100. Neither indicates dementia.
Computer based neuropsychological testing (Integneuro)(Brain Resource Company) revealed impairments in switching of attention (the trail making test A and B) and verbal interference (the Stroop test), and his verbal memory recall after a short and long delay was well below what would be expected based on his pre-morbid intelligence. These results indicate a mild disturbance of cognition in the areas of attention and concentration, executive function and memory recall that are consistent with his subjective complaints.’
In his oral evidence Dr Morris said that these deficits were not recent and were consistent with heavy consumption of alcohol.
[50]This evidence leads me to conclude that the degree of demonstrable impairment is objectively quite minor and is, at best for Mr House, unchanged over the past few years.
[51]But Mr House relies, as well, on manifestations of his personality that he contends affect his capacity to engage in employment. The matters that are relied upon are the character traits described by Dr Reddan in her report of 22 June 1997 following a consultation with Mr House on 19 June 1997. She said:
‘Mr House has difficulty in seeing the points of view of others. His thinking is inflexible and marked by grandiosity and a sense of entitlement. He tends to overstate his case and to project blame onto others for all of his own misfortunes. He thus refuses to accept any responsibility for his situation in life and pursues compensation as part of his drive to prove that others are responsible for any misfortune he has. He is self-absorbed and unwilling to look at the effect of his behaviour on his family. He consciously and determinedly refuses to change.’
In her subsequent report of 15 January 2003, having seen Mr House again on 28 November 2002, Dr Reddan said:
‘There have been some shifts in his presentation in that on this occasion he expressed more concern for others and a greater capacity for empathy. He also appeared to have insight into certain aspects of his belief patterns. However, he continues to exhibit paranoid traits and he defends against his low self esteem and feelings of inferiority by some narcissistic defences. He has long been reluctant to accept responsibility and he has been absorbed in self-pity (which he describes as a sense of victimisation) for many years. He has been rigid and inflexible in his thinking, but this has been challenged of recent times. His alcohol use has been self-defeating.’
[52]Dr McGuire generally agreed with this aspect of Dr Reddan’s evidence.
[53]These attributes, it is argued, affect what Ms Rowe described as ‘soft skills … initiative, communication, team work, ability to problem solve, self-manage, plan and learn’. In this context it is relevant to consider the views of Dr McGuire and Dr Reddan about the effects of the recent changes to Mr House’s life, that is, the cessation of drinking, the commencement and maintenance of a stable relationship and the regular performance of voluntary work. Both doctors said that one of the consequences of Mr House having ceased drinking is that he can no longer be diagnosed as having either alcohol abuse or alcohol dependence, the relevant psychiatric diagnoses. Dr McGuire agreed that the fact of Mr House’s relationship, his role as a carer and his voluntary work was indicative of empathy, care and compassion which ‘shows somebody who is improving’. Dr Reddan expressed similar views, saying of the lifestyle changes made by Mr House that they reflected ‘an improvement in his mental state’. She said of the fact of Mr House having ceased drinking in about 2003/2004:
‘First of all there is the recovering effects physically on the brain and the improvement of overall competent functioning. If you are not subjecting the brain to a drug that is actually – the central nervous system depresses. So, gradually the brain does recover. Very often it also leads to more stabilisation of moods. Often an improvement in motivation in particular. There is a general decrease in irritability and what we would call dysphoric or unhappy feelings. Alcohol tends to be a drug that over time makes people miserable. You usually find when people have abused alcohol, even if there’s a binge pattern of drinking or it’s intermittent abuse, that their mood improves when they either sip or drink at low levels.
… Again, the effects of that can be very self-sustaining.’
[54]Dr Reddan has had considerable exposure to Mr House and the matters that afflict him. Whilst she has not seen him of recent times she has had the opportunity to read and consider what others have said of his current condition. The length of her contact leads me to prefer her evidence to that of Dr McGuire, although in reality there is perhaps only a difference of emphasis between them. But Dr Reddan’s evidence, and that of Dr McGuire, satisfies me that the personality traits earlier identified by Dr Reddan would be less marked now that Mr House is no longer drinking and is in a stable relationship. The evidence of Mr House about the timing of these changes is somewhat inconsistent however it would seem that he had ceased drinking by 2004 and that the relationship with his now wife commenced earlier than that. I am then satisfied that by the time of the present application to the Authority, Mr House was no longer abusing alcohol which had the effect of considerably improving his capacity for care, compassion and empathy as well as leading to an improvement in his ‘soft skills’.”
There is no reason to depart from these findings although it is to be accepted that the conclusion of the Tribunal in June 2004 that Mr House had a 20% level of incapacity was based solely on alcoholism and disregarded, to the extent that is possible, the effects of personality disorder.
In the earlier decision I set out my views with reference to each of the categories of civil employment and noted evidence given by Ms Helen Rowe, an occupational therapist, about the content of each of those occupations. In relation to delivery driver and truck driver I said:
“[64]In relation to the occupations of delivery driver and truck driver, Ms Rowe identifies the absence of an appropriate class of driver’s licence and lack of experience with customers as impediments to work in those capacities. That may be correct however that is not the consequence of any prescribed impairment. Similarly she identifies his history of drink-driving offences as having a bearing on his capacity for employment as a driver. That may have been so in the past but Mr House has not been drinking for a number of years. She identifies difficulties with lifting and carrying but as I have not accepted the arm injuries as impairments causally related to alcoholism, I am bound to regard Mr House as possessing the physical attributes of a truck driver.
[65]The only difficulties identified that are capable of being attributed to Mr House’s accepted condition of alcoholism is a deficiency in his capacity to plan and to find geographical locations and an inability to relate to customers because of his aggression. I am prepared to accept that the first of these is the consequence of alcoholism and is the manifestation of the memory deficits first reported on by Ms Field in 1992 and more recently by Dr Morris and Ms Schumann. But there is no evidence that they have worsened over time and the effect of them on Mr House’s capacity to undertake employment in this field seems likely to be quite minor. He regularly drives his partner to appointments and does not, himself, report any difficulties in finding his way around. The other difficulty identified, that of aggression, seems more likely to be the consequence of Mr House’s personality disorder. But, as Dr Reddan observed, Mr House is quite capable of controlling his emotions. Moreover, there is evidence of considerable maturation on the part of Mr House from 2004 onwards.
[66]These matters, even taken together, suggest that the extent of any impairment to Mr House’s capacity to undertake truck driving employment of any type is minimal at best.”
As may be seen at [65] reference was made to an attribute arising from Mr House’s personality disorder. Having explicit regard to both of Mr House’s conditions of alcoholism and personality disorder I remain of the view, for the reasons I explained, that the extent of impairment arising from both of those conditions is minimal at best.
I next discussed the occupation of driver, mobile plant and said:
“[67]The next occupational category is that of driver, mobile plant, which I take to be the same as the Authority’s category of mobile plant operator. Ms Rowe identifies some of the irrelevant difficulties discussed above. The only relevant difficulty is a claimed inability on Mr House’s part to work as part of a team. Mr House identified to Ms Rowe episodes of aggression in the workplace on his part and a warning from his employer. The letters he relies upon form part of the s 37 documents. I hardly think that an occasional incident of aggression in the workplace should lead to the conclusion that Mr House had difficulty working as part of a team. It is to be borne in mind that he was a long-term employee in two workplaces and left both employers of his own accord. His longevity seems to me to be inconsistent with the notion of having difficulties working as part of a team.
[68]It is not apparent to me how this difficulty could be regarded as being attributable to Mr House’s alcoholism however even if be assumed that it was I regard the extent of reduction of Mr House’s capacity for employment of this type to be minimal at best.”
The likelihood is that the claimed inability to work as part of a team is the consequence of the personality disorder. But, as I have said, I do not regard the evidence as sustaining a conclusion that Mr House has any significant inability to work as part of a team. When both alcoholism and personality disorder are taken into account the capacity for employment is, at best, reduced only minimally.
Next I considered the occupation of storeman saying:
“[69]Next Ms Rowe considered the occupation of storeman. Her comment on this occupation included the following:
‘Concern re workplace health & safety due to history of aggression, difficulty taking orders from supervisors, interpersonal communication skills, poor interpersonal/social skills in workplace.’
I see nothing in the evidence that would warrant that conclusion. I do not regard the evidence cited by Ms Rowe as supporting the conclusion she reached, again, all the more so having regard to the changes in Mr House’s behaviour and temperament since 2004. The reduction in capacity is minimal.”
I remain of the same view. The evidence before me does not support the conclusion drawn by Ms Rowe or a conclusion that the reduction in capacity to undertake this employment is other than minimal.
The same is true of the category of labourer in the building industry where I noted,
“[70]The identical comment is made in reference to the next occupational category, that of labourer in the building industry. Although Ms Rowe refers only to the building industry, I would treat the occupational group as labourer within the construction or mining industry. For the reasons set out above I am satisfied that any impairment of capacity would be minimal.”
The occupation of security officer was discussed next. I said:
“[71]The next occupation is that of security officer. Ms Rowe identifies several matters that are unrelated to Mr House’s prescribed impairment including an absence of qualifications and of customer service experience. Those difficulties that are arguably relevant are the impaired cognitive capacity to learn and gain qualifications, the possibility that Mr House’s criminal record would preclude him from obtaining the appropriate licence, the possibility of Mr House’s aggression causing difficulties in dealing with the public and the absence of good communication and negotiation skills.
[72]The cognitive impairment was described by Dr Morris as ‘mild’ but it is attributable to alcoholism. The source of the requirement for what Ms Rowe identifies as a ‘police check’ was not identified. I take it to be the Security Providers Act 1993 (Qld). That Act requires security providers, which includes the particular occupations of bouncer, security guard, security provider and watchman nominated by Ms Rowe, to hold a licence under that Act. One of the requirements for the grant of a licence is that the applicant be ‘an appropriate person to hold the licence’. In making that determination one of the matters to be considered is whether the applicant has been convicted of an offence. However the width of that criterion is narrowed somewhat by s 11(5) of the Act which deems a person not to be an appropriate person if the person has been convicted, within 10 years of applying for a licence, of a ‘disqualifying offence’. Mr House has been convicted of offences that satisfy that description – the offence of assault occasioning bodily harm in September 1989 and that of serious assault on a police officer in February 1994 – but both these offences are outside the period of 10 years.
[73]There is then no absolute impediment to Mr House obtaining a licence although I accept that there is a risk that his criminal record may tell against him. I accept, as well, that his cognitive deficits might make more difficult the task of successfully completing the approved training course required by the Security Providers Act. I would accept, as well, that Mr House’s ‘aggression’ might have a minimal effect on his capacity to undertake work of this type. I am unable to accept that Mr House lacks good communication and negotiation skills or that if he did that that was attributable to his prescribed impairment. Mr House was an articulate and capable witness before me and, judging from the transcript of the earlier hearing, on that occasion also. He has consistently produced documents that demonstrate a detailed and logical grasp of the factual and legal issues involved in his proceedings.
[74]There is, I accept, a greater degree of reduction of Mr House’s capacity to undertake employment in this field that exists in relation to the other categories considered so far but I would still regard the extent of it as quite modest.”
The result is, still, that in the majority of the occupational groups there is, at best, a minimal reduction in Mr House’s capacity to undertake employment in those areas. Having again considered the evidence that touches upon the effect of the two conditions on Mr House’s capacity to engage in civil employment I would again put that reduction no higher than 10%. Within the category of security officer, the reduction is a little higher, perhaps as high as 20%. I remain of the view that the extent of the diminution of Mr House’s capacity to undertake civil employment attributable to both prescribed impairments is in the range of 10% to 15%.
I am then not satisfied that Mr House’s classification should be altered. I would affirm the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: .....Signed..................................................
AssociateDate of written submissions 16 September 2011
Date of decision 12 October 2011
Solicitors for the applicant Woods Prince
Solicitor for the respondent Australian Government Solicitor
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