House and Defence Force Retirement and Death Benefits Authority
[2008] AATA 38
•15 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 38
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500505
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID HOUSE Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Senior Member P McDermott, RFD Date15 January 2008
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes a decision that:
(a) For the purposes of section 34(1B)(a) of the Defence Force Retirement and Death Benefits Act 1973, alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments of the recipient member; and
(b) The percentage of incapacity in relation to the civil employment of Mr House for the purposes of s 34(1) of the Act is 30%; and
(c) For the purposes of section 30 of the Act, the invalidity classification of Mr House is Class B with effect from 19 November 2004.
………………[Sgd]………… SENIOR MEMBER
CATCHWORDS
DEFENCE FORCES – retirement and death benefits – invalidity reclassification – degree of incapacity from civil employment – alcoholism – personality disorder – medical evidence – decision under review set aside
Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 30, 34, 99Greer and Defence Force Retirement and Death Benefits Authority (2001) 63 ALD 282
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791REASONS FOR DECISION
15 January 2008 Senior Member P McDermott, RFD INTRODUCTION
1. Mr David House is a “recipient member” under the Defence Force Retirement and Death Benefits Act 1973 (“the Act”). On 19 November 2004 Mr House sought a review of his invalidity classification under s 34 of the Act. On 14 March 2005 the delegate of the Defence Force Retirement and Death Benefits Authority (“the Authority”) declined his request. On 1 August 2005 that decision was confirmed on reconsideration by the delegate of the Authority. In determining this application I have to decide the appropriate invalidity classification of Mr House on 19 November 2004, which is the date he sought a review of his invalidity classification.
REVIEWABLE DECISION
2. Under section 99 of the Act the reviewable decision is the primary decision as varied or affirmed on reconsideration. Accordingly, the decision that I am reviewing is the primary decision of the Authority which was made on 14 March 2005 [T30].
3. On 14 March 2005 the Authority noted that Mr House had an accepted impairment of alcoholism and alcohol liver disease. It was also noted that Mr House “would like to have included as causally connected impairments … personality disorder and injuries which [he] sustained in a car accident”. Mr House was advised: “As the Authority has previously considered the inclusion of these impairments as causally connected to your alcoholism and alcohol liver disease, I am unable to accept your request for a further review on this basis”.
4. The Authority in the decision of 14 March 2005 also referred to the fact that the conditions were previously considered by a delegate of the Authority on 3 July 2001, on reconsideration by the Authority on 14 February 2002, and by this Tribunal on 27 June 2004. It was also mentioned that the Federal Magistrates Court dismissed an appeal from the decision of this Tribunal.
5. On 1 August 2005 the Authority decided on reconsideration to confirm the decision of the delegate not to accede to the request of Mr House. The Authority also noted that on 3 July 2001 the delegate had decided:
§“to accept the relevant employment kinds determined by the Authority at its decision on reconsideration on 10 December 1999 (being driver, mobile plant operator, labourer, storeman, mining and construction labourer and security officer);
§to change the description of Mr House’s retirement impairment from “alcoholism and alcoholic liver disease” to “alcoholism” only; and
§to reclassify Mr House under section 34 of the Act as 20% Class C with effect from 10 August 2001.”
RELEVANT LEGISLATION
6. Part V of the Act provides for invalidity benefits to be paid to members who are retired on the ground of invalidity or of physical or mental incapacity to perform their duties.
7. Section 30 of the Act provides that where a member is entitled to an invalidity benefit the Authority is required to determine that member’s percentage of incapacity in relation to civil employment and to classify the member according to the percentage of incapacity. The section provides for the member to be classified into one of three classes which are provided for in that section.
8. A “Class A” classification applies to a member who is incapacitated for civil employment with a percentage of incapacity classification of 60% or more. A “Class B” classification applies to a member who is incapacitated for civil employment with a percentage of incapacity classification of at least 30% but less than 60%. A “Class C” classification applies to a member who is incapacitated for civil employment with a percentage of incapacity classification of less than 30%.
9. The Act provides for the entitlement of members who are classified as Class A, Class B or Class C.
10. Section 34 of the Act provides for the reclassification of recipient members. Mr House is a recipient member within the meaning of the Act.
11. Section 34 of the Act provides that 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 the member in the appropriate classification set out in section 30 according to the percentage of the incapacity of that member in relation to civil employment.
12. In determining the appropriate percentage of incapacity in relation to civil employment of a recipient member, the Authority is required to only have regard to those matters that are specified in subsection 34(1A) which are:-
(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 diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b); and
(d)such other matters (if any) as are prescribed for the purposes of the subsection. There is no contention that any other matters have been prescribed.
13. Subsection 34(1B) provides that in subsection (1A), the “prescribed physical or mental impairment”, in relation to 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).
14. Subsection 34(2) provides that where a recipient member is reclassified under this section, the Authority shall specify the date from which the reclassification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly.
EVIDENCE OF APPLICANT
15. Mr House gave evidence before me. It is fair to say that his evidence of when he actually gave up drinking was contradictory. In evidence before me he initially stated that he had given up drinking in 2006. However, in cross-examination he later admitted that he had informed Ms Schumann that he had ceased drinking in 2003. He also mentioned that he could have given up drinking in 2004. Mr House also confirmed that he was no longer an alcoholic. Mr House also mentioned that his consumption of cigarettes had recently increased. He had previously smoked 80 cigarettes a day. He managed to reduce his consumption to 40 cigarettes a day but his consumption is now 60 cigarettes a day.
16. Mr House confirmed that since 2001 he had not been in paid work. Since then he has also not done any study.
17. Mr House stated that he is presently doing volunteer work with Vision Australia. He works in the wood shop where he is assisting blind people with lathe work. He mentioned that his work is “finding the centre of wood so that people can do lathe work”.
18. Mr House also presently cares for his blind partner who suffers from depression. He met her whilst he was in hospital. He presently spends much of his time caring for her. He drives her to hospitals. His partner needs to see two to three doctors a week.
19. Mr House remarked: “I care for her with all my heart, and if I stop …. If I was made to work, I couldn’t care for her and I would go back to drinking with pleasure and I would kill someone on the road and I wouldn’t give a s**t. That’s my attitude. That’s my attitude, but while I’m caring for her, my attitude is I’m doing something with my life.”
EVIDENCE FROM PSYCHOLOGIST
20. Ms CA Schumann was called by the applicant. She has a master’s degree in clinical neuropsychology. She has been in practice for 18 years.
21. In evidence Ms Schumann confirmed the opinions that were expressed in her report of 17 April 2007 [exhibit A5]. Ms Schumann also gave evidence of the tests that she administered in making that report.
22. Ms Schumann administered a pre morbid intelligence test on Mr House. This test assesses the intelligence that Mr House would have attained prior to any brain damage that he sustained through his excessive alcohol consumption. Ms Schumann explained that certain pre morbid indicators, such as reading and abstract thinking, are well preserved in people with brain damage.
23. Ms Schumann also administered a mini mental state examination which assesses whether there is any cognitive impairment. Ms Schumann detected what she described as “problems” with memory and vision in spatial processing.
24. Ms Schumann also administered an Attention and Concentration of Mentation test on Mr House. Ms Schumann stated that this test assessed the ability to focus on tasks at hand. The test also examined the processing speed of an individual which is the speed at which the individual performs a task under observation. Ms Schumann concluded: “[His] attention and focus seemed to be good on observation”. She reported: “Observations were confirmed by average performances on the Attention Index of the RBANS”. Ms Schumann also reported: “Processing speed was observed to be mildly slow on some tasks and good on others”. Ms Schumann mentioned that his processing speed was variable. Ms Schumann explained that the attention and processing functions are often slowed down if there was brain damage caused by alcohol use.
25. Ms Schumann also administered a Gnosis and Praxis test. Ms Schumann explained that Gnosis is the recognition of visual objects and the ability to perform a task in sequence. Ms Schumann gave as an example the task of making a cup of coffee whereby an individual would sequentially have to get out a cup, and then put in the coffee and milk. Ms Schumann explained that ideational praxis is the ability to perform a motor program. Ms Schumann referred to the sequential rota for placing a letter in an envelope such as folding a piece of paper, putting it in an envelope and addressing the envelope correctly. Ms Schumann stated that his gnosis and ideational praxis enabled him to perform those tasks. Ms Schumann confirmed that Mr House had some problems in copying a simple drawing of a cube which showed a visual spatial problem.
26. Ms Schumann also administered a Language test. Ms Schumann stated that he could recognise objects in pictures. Ms Schumann stated: “showing him pictures he could name the pictures fairly well, so his naming was good. But when he had to generate a list of related items, such as fruit and vegetables or animals or related things in a category, he was quite slow with that”. Ms Schumann assessed him as having mild impairment with verbal fluency. Ms Schumann stated that his reading was scored average and his writing scored high.
27. Ms Schumann also administered a memory and new learning test. Ms Schumann stated that Mr House advised her that he had difficulty in finding his way to addresses and appointments. Ms Schumann stated that he could inform her that he was in Sunnybank where her rooms were located, but that he was unable to tell her the address or the name of the street where the rooms were located. Ms Schumann stated that she tested Mr House on learning a list of common words. Ms Schumann stated that his list learning of ten words over four trials were within moderate deficit limits. Ms Schumann also had a short story trial: Mr House forgot most of the short story. Ms Schumann stated that the 15 minute delayed recall of the word list and the story were average.
28. Ms Schumann stated that Mr House has “a retrieval problem because his recognition for the word list was good, his recognition for the story was good, so if you give him extra time, extra information prompts and cues, he’s able to recall that information, but he needs a lot of support for that”. Ms Schumann stated that “his recall is quite inefficient, unreliable, and it’s mainly because of the retrieval deficit”.
29. Ms Schumann administered a test on Mr House in respect of intellectual and executive functions. Ms Schumann stated that the main results indicated that he had “problems with shifting his mental set from one concept to another, so he was fairly rigid in his thinking”. Ms Schumann also mentioned that Mr House “had problems with his planning and organising…he was unable to put together designs with red and white blocks…he just couldn’t put those together, copy a design from a picture card, which indicated a fair few problems”.
30. Ms Schumann also stated that Mr House had significant problems with organisation. She mentioned “all he had to do was recognise pictures with common objects, and these pictures were fragmented in half and put at different orientations on the page, and he couldn’t recognise those pictures”.
31. Ms Schumann mentioned that the problems that Mr House did show were consistent with chronic excessive alcohol abuse but that his abstract reasoning and his problem solving were fairly good.
32. Ms Schumann stated that Mr House was very co-operative during the testing and that he was trying to make a good impression.
33. Ms Schumann stated that in her report she has summarised the problems which she identified Mr House to have. Ms Schumann stated that Mr House has moderate depression; a mildly slow processing speed on some tasks; rigidity in his thinking; some deficits with planning and organising and a mild to moderate visio-perceptual organisation deficit.
34. Ms Schumann in her report concluded: “I believe Mr House’s capacity to sustain meaningful employment in the open employment market appears to be very doubtful”. Ms Schumann opined that all of the identified deficits of Mr House would cause some problems at work. She considered that he would have a low level of productivity. Ms Schumann also thought that because of his cognitive problems he would need supervision. She considered that Mr House would have difficulty in accepting direction from a supervisor because he was rigid in his thinking.
35. Ms Schumann gave her reasons for concluding that Mr House was unsuitable for various occupations. Ms Schumann considered that Mr House could not act as a plant operator because of his difficulty in judging spatial difficulties and that fact that his memory was unreliable. Ms Schumann stated that if he was digging a hole near a building, the building would be at risk of construction.
36. Ms Schumann also thought that Mr House would have difficulty in being a truck driver, a taxi driver or a courier driver. She considered that he would be a risk as he could have difficulty in relation to spatial relations in the traffic.
37. Ms Schumann considered that Mr House would be unsuitable for employment in the mining industry. She stated that his deficits would put himself and all workers at risk.
38. Ms Schumann stated that his difficulties with his memory would cause problems with his employment as a security officer.
39. Ms Schumann also considered that Mr House would be inefficient and unreliable as a storeman. She considered that he would need good planning and organising skills which he does not have.
40. Ms Schumann was asked in cross-examination whether any of the tests that she administered were designed to “pick up someone who is deliberately under-performing in the battery of cognitive tests?” Ms Schumann replied that “there’s actually two tests that we commonly use to look for simulation of memory impairment or malingering or – yes, what you’re talking about, but there were no signs on those two tests”. Ms Schumann was referring to the associated learning, paired-associate learning test and the digit span test. Ms Schumann then realised that she did not administer the associated learning, paired-associate learning test to Mr House. She had only administered the digit span test which did not indicate any problems. Ms Schumann stated that “I didn’t give him any specific test that was a test for simulation of memory impairment at all”.
41. Under cross-examination Ms Schumann was asked to clarify a statement that she made in her evidence-in-chief that Mr House would have difficulty in recalling a document which he had read 300 times. Ms Schumann thought that he would have better recall for a document to which he had an emotional attachment.
42. Under cross-examination Ms Schumann was asked to comment upon the fact that Mr House had previous long-term employment. She commented that the employer “was probably a sympathetic employer”.
43. I asked Ms Schumann to comment upon the fact that Mr House does some volunteer work in a workshop for people who are blind which requires him to assist in lathe work by finding the centre of wood that is lathed. Ms Schumann replied that Mr House would be able to perform routine structured work.
EVIDENCE FROM OCCUPATIONAL THERAPIST
44. Ms H Rowe was called by the applicant. She is an occupational therapist and a rehabilitation counsellor. She has postgraduate qualifications in counselling. She has worked in the area of rehabilitation and workplace. Since 1997 she has been in private practice.
45. Ms Rowe confirmed that her report of 22 June 2006 [exhibit A3] was completed after she saw Mr House on four occasions: 8 May 2006, 15 May 2006, 22 May 2006 and 8 June 2006. She gave evidence of the tests that she administered in making that report.
46. Ms Rowe mentioned that Mr House undertook a functional capacity assessment at the Workplace Rehabilitation Unit at the University of Queensland. At that unit he performed a number of different movements that are functionally required in employment on a repetitive basis. Ms Rowe considered that Dr John Morris looked at the basic range of movement whereas her test was a fairly systematic assessment. Ms Rowe also explained that her 20% assessment of the incapacity of Mr House to undertake the duties of a driver was based upon the core demands of the job of a driver.
47. Ms Rowe confirmed her view, which was expressed in her employment report, that the mental health impairments of Mr House are his greatest barrier to employment. Ms Rowe referred to his difficulties in coping with interpersonal interaction within the workplace.
48. Ms Rowe also confirmed the conclusion in her report that the occupation of storeman is the best match to physical capacity, skills, qualification and experience. Ms Rowe also concurred with the view of Dr McGuire that Mr House’s combined mental health issues prevent him from employment.
49. Ms Rowe in her evidence also mentioned that Mr House was late in turning up for two of his appointments. Ms Rowe also mentioned that Mr House informed her that he had given up drinking in 2004.
50. Under cross-examination Ms Rowe confirmed that her assessment of the physical incapacity of Mr House combines all of the physical problems that Mr House has. Ms Rowe also emphasised that this is mentioned in her report. She mentioned how his fractured right hip causes difficulty with repetitive kneeling.
evidence FROM PSYCHIaTRISTS
51. Dr BA McGuire, psychiatrist, was called to give evidence by the applicant. Dr McGuire had made a report on 19 April 2006 with a short addendum on 11 July 2006. The report and addendum were admitted into evidence.
52. Dr McGuire in her report had stated:
“He told me he is in a new relationship since 2002 which is the best thing he has done. He has a long history of alcoholism. He stated he stopped drinking 18 months into his relationship….He said that he smokes 35 - 40 cigarettes a day having cut down from 80.”
Dr McGuire in her report had remarked:
“He states that the relationship has helped him a great deal and he is very much better than he was”.
53. Dr McGuire in her report had opined that Mr House suffers from a personality disorder. Dr McGuire bases that conclusion on his history, his demonstration of some paranoid traits, irritability, a tremendous need to project his difficulties onto others, some difficulties with anger management and chronic dysthymia. Dr McGuire referred to some suicidality in the past.
54. Dr McGuire in giving her evidence-in-chief was asked about the relationship between the conditions of alcoholism and personality disorder. Dr McGuire remarked that the relationship was “hard to evaluate”. Dr McGuire remarked: “If, in fact, he has abstained from alcohol since 2004, it may offer some evidence that he’s not an alcoholic but not necessarily, so I really find that a very hard question to answer”.
55. Dr McGuire in giving evidence-in-chief was asked about the comment in her report: “[H]e now does suffer from the addictive nature of alcoholism”. Dr McGuire remarked that comment reflected her view at the time that she wrote the report. Since she wrote that report she has reflected on the opinions of others. Dr McGuire stated that Mr House “may have overstated his alcohol consumption”. Dr McGuire recognised that “the physiological evidence doesn’t support his history of long and heavy alcohol consumption”.
56. Dr McGuire when being cross-examined stated that she had seen Mr House only once for a period of about an hour. Dr McGuire remarked: “It was a limited assessment”. Dr McGuire also confirmed that while Mr House continues not to drink he would not be diagnosed as having either alcohol dependence or alcohol abuse.
57. Dr McGuire, when being cross-examined, was asked to comment upon the report of Dr Redden in which she opined that the history of Mr House “did not support a diagnosis of alcoholism nor of chronic dysthymia” as Dr McGuire herself had proposed. Dr McGuire did not agree with that conclusion in relation to dysthymia. Dr McGuire, however, acknowledged that the dysthymia condition was not a major depressive disorder.
58. Dr McGuire when being cross-examined was also asked about the comment in her report: “There were no obvious cognitive deficits”. She was also asked to comment upon the conclusion of Ms Schumann who expressed the view that there were detectable cognitive deficits. Dr McGuire expressed the view that the cognitive deficits were of such a degree that they are not noticeable in general conversation in a clinical setting.
59. Dr McGuire mentioned that she was unaware of the volunteer work that Mr House does for Vision Australia. She agreed that this work would indicate a degree of empathy and care beyond just the woman for whom he is in a close relationship.
60. Dr McGuire was also referred to the lifestyle changes of Mr House and asked whether “they tend to show a person who is maturing or alternatively is less constrained or less affected by the personality disorder?” Dr McGuire replied: “It certainly shows somebody who is improving. Yes, I would agree with that.”
61. Dr JG Reddan was called to give evidence by the respondent. She confirmed that she examined Mr House in 1997, 2000 and 2002. Dr Reddan in her evidence stated that she declined to interview Mr House with a security guard present as proposed by the Australian Government Solicitor. The Australian Government Solicitor had proposed such security arrangements as Mr House had threatened to assault Dr Reddan.
62. Dr Reddan did not agree that it was a reasonable proposition that Mr House would be unable to control himself during the examination. Dr Reddan stated that she based that view on her experience with him during the past. Dr Reddan remarked: “I thought if he chose to, he could control himself, yes”.
63. Dr Reddan confirmed the opinions which were expressed in her reports [T23, T32, exhibits R2, R4 and R8]. She noted that there was a typographical error in her report of 1 June 2007 [para 1(e)] which referred to “physical impairment” instead of “psychiatric impairment”.
64. Dr Reddan was asked to comment upon the reports of Dr McGuire. Dr Reddan noted that Dr McGuire had observed a history of improvement in the mental state of Mr House and that Mr House had ceased drinking alcohol. Dr Reddan restated her opinion that the history of Mr House did not support a diagnosis of alcoholism or chronic dysthymia. Dr Reddan, however, agreed with the conclusion of Dr McGuire that the history of Mr House did support a diagnosis of personality disorder. Dr Reddan also expressed her view that Dr McGuire was expressing a view outside the expertise of a psychiatrist in discussing the ability of Mr House to work with his left arm.
65. Dr Reddan stated that when the term “alcoholism” is used it is usually referring to alcohol dependence. Dr Redden mentioned that terms like alcohol abuse or alcohol dependence are recognised terms. Dr Reddan stated that she would not make a diagnosis of alcohol abuse or alcohol dependence unless a person was more than just actively drinking.
66. Dr Reddan also commented upon the opinion of Dr McGuire who described Mr House as having dysthymia. Dr Reddan stated that the chronic unhappy condition of Mr House did not constitute a DSM–IV disorder. Dr Reddan stated that Dr McGuire in describing the condition as “sub-clinical” meant that it did not meet the criteria of a disorder. Dr Reddan did not consider that the dysthmia condition was an impairment to employment.
67. Dr Reddan was asked to comment upon the changes to Mr House’s life caused by his new relationship. Mr House drives his partner to three to four medical appointments per week as week as well as caring deeply for her. Another change was the volunteer work done for Vision Australia: it is clear that Mr House deeply cares for the blind people who he is assisting. Dr Reddan remarked: “Very often we find that if we can encourage people to do something that is not just about themselves, it often markedly increases self-esteem and self confidence and, therefore, the mental state overall does improve. There is a greater sense of wellbeing and happiness”. Dr Reddan also remarked that the changes reflect “an improvement in his mental state rather than [just] sitting around feeling victimised” and a “higher level or cycle of functioning”.
68. Dr Reddan in her evidence also commented upon the effect of the cessation of drinking by Mr House in 2003/2004. Dr Reddan stated that gradually the brain does recover and there would be an improvement in the overall component functioning of the brain.
69. Dr Reddan also stated that there would often be an improvement in motivation, a general decrease in irritability and dysphoric feelings.
70. Dr Reddan in her evidence generally stood by the percentages of incapacity which are mentioned in her report of 1 June 2007. These percentages are driver, minimal, 5%; mobile plant operator, minimal, 5%; labourer, minimal, 5%; storeman, minimal, 5%; mining and construction labourer, small, 15%; security officer, moderate, 30%; powder monkey, small, 20%; sub-contractor in mining and construction, small, 20%; foreman in any of these fields, moderate, 30%. Dr Reddan conceded in cross-examination that her assessment of the incapacity of Mr House as a driver could be increased from the minimal 5% assessment as stated in that report to 10%.
71. Dr Reddan was frank in conceding that in giving an impairment rating she was giving an estimate. In her evidence she remarked: “All these impairment rating scale[s] are rubbery”. Dr Reddan also adverted to the fact that impairment ratings vary enormously over jurisdictions.
72. Dr Reddan confirmed that the percentages of incapacity in her report include the personality disorder of Mr House. Dr Reddan also confirmed that if she assessing just the incapacity caused by alcohol they would have to be lower because he is not abusing alcohol.
73. In her report of 8 May 2000 Dr Reddan had given an impairment rating of 30% as a driver. Under cross-examination she stated that she had probably thought from memory that the rating was based mostly on his personality disorder, but that she could not be absolutely certain. However, it is apparent from an examination of the report that the rating was based on the possibility of alcohol abuse. Dr Reddan then reported: “It is my opinion that Mr House’s alcohol abuse would impair his capacity to work as a driver” [T32, fol 246]. Dr Reddan referred to the then real possibility of him losing his licence. In that report Dr Reddan also made reference to the “personality traits [which] may lead him to some difficulty at times [in] getting on with difficult, intoxicated, or highly opinionated passengers” [T32, fol 246].
74. Under cross-examination Dr Reddan had stated that the situation was now different from when she had assessed Mr House as having a 30% impairment rating. Dr Reddan remarked that “because he’s given up drinking alcohol I think he’s happier and less irritable and getting on better with people, as Dr McGuire’s report says, so I would expect that as a driver his impairment would lessen”.
75. Dr Reddan was asked about the capacity of Mr House to work as a mobile plant operator. Dr Reddan in her report of 8 May 2000 had commented that Mr House did not have any impairment from a psychiatric perspective to work as a mobile plant operator. In that report Dr Reddan had remarked: “I cannot see any particular reason from a purely psychiatric perspective why he could not do this kind of work”. In her latest report Dr Reddan was prepared to give a small impairment rating of less than 5% for a mobile plant operator. In evidence, Dr Reddan reiterated her opinion “there’s nothing from a psychiatric perspective that would stop Mr House being an effective mobile plant operator if he was trained in the job”.
76. Dr Reddan was also asked about her opinion that Mr House had an impairment rating of 20% in respect of work as a storeperson. Dr Reddan mentioned that she had taken into account the fact that “he had been in that position for quite a long time”. Dr Reddan was asked about the hypothesising of a previous witness that Mr House may have had a sympathetic employer. Dr Reddan stated: “Even with a sympathetic employer, he had to have been able to fulfil his duties or they wouldn’t have kept him on for as long as they did”. Dr Redden also stated that “no employer is that sympathetic or stupid that they would ignore serious complaints of fellow-employees and he had been in the same employment for quite a number of years at that time”.
77. Dr Reddan in her evidence had given her opinion that Mr House could perform the duties of a foreman if he chooses to put his mind to it, but considered that he would be significantly impaired. Under cross-examination Dr Reddan did not agree that Mr House had an impairment level which was higher than 30%. Dr Reddan remarked in referring to Mr House: “This is a man who reads philosophy and, you know, existential stuff, I mean this is a person who’s not incapable of turning his mind to broader issues if he so chooses”.
78. Dr Reddan in her evidence also opined that that the functional effects of alcoholism and personality disorder have diminished.
EVIDENCE FROM ORTHOPAEDIC SURGEON
79. Dr John Morris FRCS was called to give evidence by the respondent. Dr Morris stated that he has been an orthopaedic surgeon for 32 years.
80. Dr Morris confirmed the opinions that he made in his reports of 30 November 2006 and 24 April 2007.
81. Under cross-examination Dr Morris was asked how he tested the grip strength of Mr House. Dr Morris stated that he tested for grip strength by pulling on his fingers. Dr Morris stated that he did not use a grip monitor.
82. Dr Morris asked a question about the report of Ms Rowe who tested Mr House with a dynamometer and found that he had below average grip strength. Dr Morris remarked: “[t]he trouble with those dynamometers is that it really depends on compliance”. Dr Morris stated that it depends on “how hard a patient wants to push or pull”.
83. Dr Morris was also referred to the fact that Ms Rowe did some functional assessments by way of weights. Dr Morris was asked whether he did any of those assessments. Dr Morris replied that he did not as he did not have any weights in his practice.
84. Dr Morris under cross-examination was also asked about the report of Ms Rowe who recorded that Mr House reported pain at his elbow and upper arm. Dr Morris stated that pain is very subjective and that it was difficult to work out this reported pain as the joint itself was not involved with his injury some 32 years ago.
85. Dr Morris under cross-examination indicated his view is that the methodology of Ms Rowe (occupational therapist) is flawed because of the subjective nature of the methodology.
86. Dr Morris stated that he did not participate in any floor to waist lift or a waist to overhead lift. Dr Morris stated that he gets a pretty good indication of strength from standing in front of him and pulling against him with his strength.
87. Under cross-examination Dr Morris also stood by the opinion which was expressed in his report of 30 November 2006 that the incapacity of Mr House to work as a driver was minimal or less than 10%. Dr Morris was asked whether the duties of a driver would include lifting duties. Dr Morris stated that the majority of drivers don’t unload and load goods as they use forklifts or pallet jacks. He stated that there are not that many people, apart from carriers and furniture removalists, who actually load and unload trucks by hand. Dr Morris stated that in his opinion Mr House was capable of lifting loads of up to twenty kilograms. Dr Morris mentioned that 25 kilograms is the maximum load permitted by Workplace Health and Safety.
88. Under cross-examination Dr Morris rejected the proposition that Mr House would have difficulty in undertaking the duties of a driver. Dr Morris stated that Mr House was quite capable of cleaning and maintaining vehicles. Dr Morris recognised that most drivers would have difficulty in changing tyres and would require assistance in that task.
CONSIDERATION
89. I must determine, as at 19 November 2004, the percentage of incapacity in relation to civil employment, and the appropriate classification in respect of the incapacity for the purposes of sections 30 and 34 of the Act. I will now turn my attention to the various matters that I must consider.
PHYSICAL OR MENTAL INCAPACITY BY REASON OF WHICH THE MEMBER RETIRED
90. I must give consideration to the impairment for which the member was retired. Mr House was discharged from the Defence Force on 29 May 1975. On that occasion the reason why he was discharged was that his “retention in the Military Forces was not in the interests of those Forces”. In 1979 the Authority was advised by the Army that the reason for his discharge was that he was “medically unfit for further service”. On 6 August 1975 his retirement impairment was then alcoholism and alcoholic liver disease. I find that the primary reason for his discharge was his alcoholism condition which is interrelated with his personality condition.
PRESCRIBED PHYSICAL OR MENTAL IMPAIRMENTS
91. At present alcoholism is the prescribed physical or mental impairment for the purposes of section 34 of the Act. I have to consider whether the personality disorder of Mr House should be accepted as being one of his prescribed physical or mental impairments which was a cause of the incapacity by reason of which he retired.
92. It has long been recognised that Mr House has a personality disorder. In September 1989 Dr G Murphy concluded that Mr House has a “personality disorder that is part of his constitution. He has a dependence on alcohol”. This personality disorder was manifest when Mr House was examined by Dr A Arden who concluded in May 1996 that Mr House was “suffering from alcohol addiction, with a severely damaged personality”. More recently, both Dr McGuire and Dr Reddan have confirmed that Mr House has a personality disorder which is interrelated to his alcohol condition.
93. Dr Reddan in her report of 22 June 1997 also confirmed the constitutional nature of the personality disorder of Mr House. Dr Reddan considers that Mr House’s “personality style was entrenched by his adolescence and early adult life”. The personality disorder was accordingly present at the time of his enlistment.
94. I have thought it important to give consideration to the issue of whether under the scheme of the Act a constitutional condition may itself constitute a prescribed physical or mental impairment. In my opinion a constitutional condition may constitute a prescribed physical or mental impairment. This is recognised by section 28 of the Act which only excludes pre-existing conditions where a member has retired on the basis of such a condition within a year of becoming a contributing member. This exclusion certainly cannot apply to Mr House.
95. In order for the personality disorder of Mr House to constitute a prescribed impairment there must be some evidence that this condition rendered Mr House incapable of performing his duties: Greer and Defence Force Retirement and Death Benefits Authority (2001) 63 ALD 282 at 289-290.
96. The fact that the personality disorder of Mr House could “impact” upon his employment was in fact recognised by Dr Reddan who was being cross-examined before this Tribunal in 2003. On that occasion Dr Reddan remarked: “The relative impact of personality disorder versus alcohol abuse will vary from job to job, as well. It’s not going to be the same for every job” [ex. R9, P-59].
97. It is clear that Mr House has had some difficulty in complying with the disciplinary requirements of the Army. His disciplinary record which includes some immature activity is consistent with his personality condition. Dr Reddan has commented that in recent times there has been a sign of some maturation of Mr House’s personality.
98. There is evidence before me that the personality disorder of Mr House is a significant condition. In 2003 Dr Reddan in giving evidence-in-chief before the Administrative Appeals Tribunal was asked whether it was possible to make an assessment of the effect that the alcohol abuse was having on the capacity of Mr House to undertake the identified kinds of employment. Dr Reddan was asked to leave “aside the effects of his personality disorder”. Dr Reddan frankly acknowledged that the exercise “is artificial and it’s difficult”. However, Dr Reddan remarked that “when you kind of combine the two together – and I think you’d really have to kind of almost, if you assign a percentage,…you’d almost sort of have to halve it in each case in relation to personality or alcohol, but it’s a somewhat artificial kind of distinction that, in real life, isn’t quite right”.
99. I rely upon the evidence of Dr Reddan who in effect stated that the personality condition was as significant as the alcohol condition. I also rely upon the evidence of Dr Reddan that the personality disorder of Mr House as well as his alcohol condition would impact upon his employment. I accordingly conclude that the personality disorder of Mr House was one cause of his retirement.
100. I find that, for the purposes of section 34(1B)(a) of the Act, alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments of the recipient member.
WAS THE MEMBER SUFFERING FROM ANY OTHER PHYSICAL OR MENTAL IMPAIRMENT WHICH WAS CAUSALLY CONNECTED WITH HIS RETIREMENT IMPAIRMENT
101. Mr House has claimed that he suffers from an upper left limb impairment which he considers is linked with his abuse of alcohol. After considering all of the material I am not prepared to make a finding that the limb condition is linked to his alcohol condition. On behalf of the Authority it was submitted that there is no contemporaneous evidence about the circumstances in which the accidents in 2005 and 2006 occurred. The blood alcohol condition of Mr House was not recorded and I am not prepared to accept his assertions concerning the accident.
102. Mr House has also contended that he has a chronic dysthymic condition which is an impairment which was causally connected with the alcoholism of Mr House. Dr Reddan has given evidence that the chronic unhappy condition of Mr House was sub-clinical meaning that it did not meet the criteria of a disorder. Dr Reddan also did not consider that the condition constituted an impairment to his employment. I accept the evidence of Dr Reddan that the condition does not constitute a disorder. I also accept the evidence of Dr Reddan that the condition is not an impairment to employment.
103. I accordingly find that there are no causally connected impairments pursuant to section 34(1B)(b) of the Act.
VOCATIONAL TRADE AND PROFESSIONAL SKILLS OF APPLICANT
104. Under subsection 34(1A)(a) of the Act I am required to have regard to the vocational, trade and professional skills, qualifications and experience of the recipient member.
105. In considering this issue I have had regard to the pre-enlistment employment of Mr House which was a bicycle mechanic, a storeman, a packer and a worker on a poultry farm. In his Army service he was a rifleman, an assault pioneer and a driver. In the Army he had some experience as an NCO. His post discharge employment was a plant operator, a labourer, a meat worker, a freezer hand, a fork lift operator and a storeman and packer. I also note that Mr House had a Grade 8 standard of education.
KINDS OF CIVIL EMPLOYMENT
106. Under subsection 34(1A)(b) of the Act I am next required to have regard to the kinds of civil employment which a person with skills, qualifications and experience referred to in subsection 34(1A)(a) of the Act might reasonably undertake.
107. The Federal Court of Australia in Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 has held that I must have regard not only to the employments that a member has followed or would be likely to follow but of the kinds of civil employment which a person with the skills, qualifications and experience identified in par (a) might reasonably undertake. The Full Court emphasised that the words ‘kind”, “might” and “reasonably” all indicate that a narrow view must not be taken.
108. On behalf of Mr House it was contended that the kinds of employment which Mr House might reasonably undertake are: “driver (including truck, taxi, or courier); operator of equipment, plant and machinery; work requiring a mechanical aptitude; work as a sub-contractor in mining or construction; powder monkey; labourer; storeman; security officer; labourer; and work as a foreman in any of these fields”: Applicant’s Amended Statement of Facts and Contentions, 1 March 2007, para 6.
109. On behalf of the Authority it was submitted that Mr House should be assessed for the employment types of “driver, mobile plant operator, labourer, storeperson, mining and construction labourer and security officer”: see Respondent’s Statement of Facts and Contentions, 16 October 2006, para 79.
110. In this application it was contended that the kinds of civil employment that Mr House might reasonably undertake were wider than contended by the Authority and as previously contended by Mr House. Mr House made a new submission that he was “foreman material”: see Applicant’s Submissions, 31 July 2007, paras 39 and 40.
111. I have taken into account the fact that Mr House was an NCO albeit for a short time. I have also had regard to the evidence of Dr Reddan, who was called by the Authority, who stated that Mr House could perform the duties of a foreman if he put his mind to it. I consider there is some weight in the submission of Mr Harding, of counsel, that Mr House could “reasonably undertake” (within the meaning of s 34(1A) of the Act) the duties of a foreman.
112. I have also taken into consideration the fact that Mr House has experience as an assault pioneer which would in my view give him experience in being a powder monkey and a sub-contractor in mining and construction.
113. I find that the kinds of civil employment which Mr House with skills, qualifications and experience referred to in section 34(1A)(a) of the Act might reasonably undertake would be as a driver, mobile plant operator, labourer, store person, mining and construction labourer, security officer, powder monkey, sub-contractor in mining and construction, and foreman in any of those fields.
DEGREE OF IMPAIRMENT
114. Under section 34(1A)(c) of the Act I am next required to have regard to the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b).
115. The Tribunal in McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 at 792, discussed matters which may not be taken into account (eg, the ageing process, a depressed labour market, a state of unemployment, the shortage of employment for those who might engage in a particular occupation, circumstances foreseeable only in the long term unless made appropriate and prevention of continuance in non-civil employment).
116. In making a decision under section 34(1A)(c) of the Act I am conscious that I would ordinarily examine the degree to which each prescribed impairment diminished the capacity of Mr House to undertake each of the relevant kinds of employment. However, it would be artificial in this case to endeavour to determine the effect of each prescribed impairment.
117. I accept the evidence of Dr Reddan who gave an opinion of percentages of incapacity which are mentioned in the report of 1 June 2007. Dr Reddan took account of the alcohol condition as well as the personality disorder condition in providing her opinion. These percentages are driver, minimal, 5% (which Dr Reddan conceded could be increased to 10%); mobile plant operator, minimal, 5%; labourer, minimal, 5%; storeman, minimal, 5%; mining and construction labourer, small, 15%; security officer, moderate, 30%; powder monkey, small, 20%; sub-contractor in mining and construction, small, 20%; foreman in any of these fields, moderate, 30%.
118. In McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 at 792 this Tribunal, which was presided by Deputy President R D Nicholson, provided valuable guidance in assessing the degree of impairment referred to in s 34(1A)(c). I am required to have regard to the width, quality and nature of the range in employment opportunities and make a “value judgment” rather than a “mathematical calculation”.
119. I should record that I have not placed any weight on the evidence of Ms Schumann. Ms Schumann did not give Mr House a specific test for simulation of memory impairment or malingering. I find this surprising in view of the history of this matter. A professional witness who was called on behalf of Mr House frankly acknowledged that Mr House had previously exaggerated his alcohol consumption. I also consider that Ms Schumann went beyond the role of an expert witness in speculating that Mr House had a sympathetic employer when he had long-term employment.
120. I also mention that the impairment report of Ms Rowe combines all of the physical problems of Mr House including his fractured right hip. It is not a report that only considers the effect of the prescribed physical and mental impairments of the member.
percentage of incapacity of civil employment
121. I consider that it would be inappropriate for me to simply perform a “mathematical calculation” by taking an average of the various percentages of impairment for the kinds of employment listed above. I am also conscious that I am administering beneficial legislation. I accept the fact that Mr House is able to drive as he regularly drives his partner to appointments. I also accept the evidence of Dr John Morris who has made a realistic assessment of the ability of Mr House to be a driver. I also accept that the alcohol condition of Mr House is now in remission and Mr House is to be commended for his responsible attitude. I have already mentioned that in McGovern Deputy President R D Nicholson has stated that I am required to have regard to the width, quality and nature of the range in employment opportunities and make a “value judgment”. I have had regard to the fact that Dr Reddan, who has been called by the Authority has given Mr House a 30% rating on two kinds of civil employment that Mr House could reasonably undertake. Making a “value judgment” I find that the percentage of incapacity in relation to the civil employment of Mr House for the purposes of section 34(1) of the Act is 30%.
APPROPRIATE CLASSIFICATION
122. I find that Mr House has a classification of Class B for the purposes of section 30 of the Act, such classification to take effect from 19 November 2004.
DECISION
123. The Tribunal sets aside the decision under review and substitutes a decision that:
(a)For the purposes of section 34(1B)(a) of the Act, that alcoholism and the personality disorder of Mr House were the prescribed physical and mental impairments of the recipient member; and
(b)The percentage of incapacity in relation to the civil employment of Mr House for the purposes of s 34(1) of the Act is 30%; and
(c)For the purposes of section 30 of the Act, the invalidity classification of Mr House is Class B with effect from 19 November 2004.
I certify that the 123 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD
Signed: .......................[Sgd].........................................................
S O’Grady, AssociateDate/s of Hearing 8 February 2007; 2 July 2007; 3 July 2007
Date of Decision 15 January 2008
Counsel for the Applicant Mr Harding
Solicitor for the Applicant Woods Prince Lawyers and Notary Public
Counsel for the Respondent Mr Dillon
Solicitor for the Respondent Australian Government Solicitor
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