Johnston and Defence Force Retirement and Death Benefits Authorit Y
[2004] AATA 154
•13 February 2004
Administrative
Appeals
Tribunal
ORAL DECISION AND REASONS FOR DECISION [2004] AATA 154
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2002/1068
GENERAL ADMINISTRATIVE DIVISION ) Re DEEMA JOHNSTON Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Senior Member J Dwyer,
Mr C Ermert, Member,
Dr J H Maynard, MemberDate13 February 2004
PlaceMelbourne
Decision The Tribunal, under s 99(6) of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”) varies the decision under review to provide:
1. Residual pain in right knee and pain and scarring, including neuroma, in right and left big toes are added as impairments that caused the invalidity retirement of Mr Johnston; and
2. Under s 30(1) of the Act, it is determined that, as at 11 March 1997, the degree to which the physical and mental impairments, because of which Mr Johnston was invalidity retired, diminished his capacity to undertake the relevant kinds of civil employment was large, 60% or more – Class A.
[sgd] Mrs Joan Dwyer
Senior Member
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – classification in respect of percentage of incapacity – determination of percentage of incapacity to have regard to three specified matters only – no issue as to kinds of civil employment recipient might reasonably undertake but questions as to impairments that caused the Applicant’s retirement and degree to which prescribed impairments diminished capacity to undertake relevant kinds of civil employment – applicant employed for 2 ½ years after discharge in various positions as Computer Technician – finding that Applicant’s residual pain in right knee and pain and scarring, including neuroma, in right and left big toes were impairments that caused his invalidity retirement – finding that degree to which physical impairments diminished Applicant’s capacity to undertake relevant types of civil employment was moderate – finding that degree to which the mental impairment diminished Applicant’s capacity to undertake relevant kinds of civil employment was large – decision under review set aside – decision made in substitution that incapacity for civil employment is 60% or more and that classification is Class A.
Defence Force Retirement and Death Benefits Act 1973, ss 30(1), 30(2), 99(6).
Administrative Appeals Tribunal Act 1975, s37.Re Greer and Defence Force Retirement and Death Benefits Authority [2003] AAT 6
X v Defence Force Retirement and Death Benefits Authority (1981) 3 AL N37 60Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156
REASONS FOR DECISION
13 February 2004 Senior Member J Dwyer,
Mr C Ermert, Member, andDr J H Maynard, Member
1. This is an application under s 99(6) of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”), for review of a decision of the Defence Force Retirement and Death Benefits Authority (“the Authority”) made on 30 April 1997 and varied on reconsideration on 20 September 2002. The Authority decided to:
(b) determine pursuant to paragraph 30(2)(b) of the Act, that the relevant kinds of civil employment which a person with Mr Johnston’s vocational, trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) were Radio Operator, Communications Controller and Computer Support Technician;
(c) determine for the purposes of paragraph 30(2)(c) of the Act, that Multilevel Degenerative Disc Disease of the Lumbar Spine with L4/5 Disc Protrusion, Bilaterial Compartment Syndrome requiring Fasciotomy and PTSD constituted the physical or mental impairments that caused Mr Johnston’s retirement; and
(d) VARY the Committee of Alternates’ decision made in April 1997 that Mr Johnston’s level of incapacity in relation to civil employment at the time of his discharge from the Defence Force was 10% and hence that his invalidity classification under subsection 30(1) of the Act was Class C, with effect from 11 March 1997, by determining that the percentage of incapacity was 20%. (T239 p568)
2. Mr G Moore of Counsel appeared for Mr Johnston. Mr Dubé, a Principal Solicitor with the Australian Government Solicitor, appeared for the Authority. Evidence was given by Mr Johnston and by Mr Fordham, his former employment supervisor. Mr Dubé called Dr Hart, an orthopaedic surgeon, and Dr Ratnayake, a psychiatrist. At the hearing the Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) together with exhibits tendered during the hearing.
Background Facts
3. Mr Johnston joined the Defence Force (Army) on 6 May 1987 and was retired on medical grounds on 10 March 1997. During his service his trade was Radio Operator and Cipher Clerk. On 15 August 1989, Mr Johnston was a passenger in a vehicle which rolled during an exercise. He was admitted to hospital and remained a hospital patient until 24 August 1989. He sustained severe injuries to his right hand and fractured ribs, but appeared to make a good recovery. On 5 February 1992 Mr Johnston was posted as part of the Australian Contingent United Nations Advance Mission in Cambodia. He served as a Signaller in Cambodia from 5 February 1992 to 15 December 1992.
4. On his return to Australia, after three months leave, Mr Johnston was posted to NORFORCE stationed in Darwin. That posting requires a high degree of physical fitness. Mr Johnston could not maintain that level of fitness. While he was in NORFORCE he fell to the ground injuring his back, which may have awakened a previously undiagnosed lumbar injury sustained in the accident. In October 1994, he transferred to NORCOM, which is the Headquarters Northern Command. That transfer was on the grounds of health.
5. In December 1995 Mr Johnston was posted to Defence Centre Melbourne as a Communications Operator. He was sent to Melbourne because of his physical condition, and was classified "home only, sedentary duties only".. He could not satisfactorily perform even his limited duties. After a Final Medical Board Examination on 11 February 1997 he was classified "MU unfit for military service" and discharged on medical grounds on 10 March 1997.
6. Mr Johnston commenced employment as a full time tutor at the Computer Power Training Institute (“CPTI”) in February 1997, prior to his formal discharge, after having been told that he was to be discharged. He had been studying part time at CPTI during the preceding year.
7. On 30 April 1997 Mr Johnston's incapacity in relation to civil employment was determined by the Authority to be 10 per cent. Accordingly he was classified as Class C under s 30 of the Act with effect from 11 March 1997. Mr Johnston sought a late reconsideration and on 20 September 2002 the Authority decided to vary the decision made on 30 April 1997.
8. The Authority added post traumatic stress disorder as an additional prescribed impairment and increased to 20 per cent the degree of Mr Johnston's incapacity to work as a radio operator, communications controller and computer support technician, slightly changing the description of those occupations. The impairments recognised as having contributed to the invalidity retirement were “multi-level degenerative disc disease of the lumbar spine with L4/5 disc protrusion, bilateral compartment syndrome requiring fasciotomy and post-traumatic stress disorder (“PTSD”)”.
9. Even with the increase of incapacity to 20 per cent, Mr Johnston remained classified Class C because of the operation of s 30(1) of the Act. It provides as follows:
(1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall 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
10. There are two issues for determination. The first is whether additional conditions should be added to the list of impairments which caused the invalidity retirement. The second is whether Mr Johnston's percentage of incapacity resulting from those impairments, in relation to civil employment, should be increased.
IMPAIRMENTS THAT CAUSED THE INVALIDITY RETIREMENT
11. As to the first issue, Mr Moore submitted that right knee and both big toes, right ankle and thoracic spine impairments should have been recognised in the decision of the Authority. On the second day of hearing Mr Dubé said that the Authority conceded that impairment arising from residual pain in the right knee and in both big toes should be added to the impairment that caused the invalidity. That was based on the final medical board reports at T112 and T113.
12. As to the thoracic spine pain and right ankle condition, Mr Dubé did not dispute that they first arose during service, but he submitted that they played no part in the invalidity retirement. On the basis of the decision of the Tribunal in Re Greer and Defence Force Retirement and Death Benefits Authority [2003] AAT 6, Mr Dubé submitted that it was not appropriate to include those conditions as contributing to the invalidity retirement. We accept that submission, however, we will slightly change the description of the big toe impairment to recognise the scarring including neuroma.
DEGREE OF INCAPACITY FROM SPECIFIED IMPAIRMENTS
13. The second issue is the determination of the degree of incapacity resulting from the specified impairments and the degree of incapacity in relation to civil employment. As to the issue of determination of percentage of incapacity in relation to civil employment, we must refer to s 30(2) of the Act which provides:
(2) In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the member;
(b) the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c) the degree to which the physical or mental impairment of the member that caused the invalidity or physical or mental incapacity because of which he or she was retired has or had diminished the capacity of the 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.
14. We accept, as submitted by Mr Dubé, that the only factors to which we may have regard as those in s 30(2). As to paragraphs (a) and (b), there is no dispute between the parties.
15. Mr Johnston accepts the findings in the reconsideration decision of the Authority, that the relevant kinds of civil employment which a person with his vocational trade and professional skills, qualifications and experience might reasonably undertake, disregarding all impairments, were radio operator, communications controller and computer support technician.
16. The question is to what degree Mr Johnston's physical and mental impairments as specified earlier, and including the right knee and both big toe conditions, diminished his capacity to undertake the specified forms of civil employment.
17. In this matter we find that Mr Johnston's physical and mental impairment diminished his capacity for all three of the specified types of employment in the same way. They all require similar physical activities with much sedentary work. His mental impairment resulting from PTSD would we find affect him similarly in any employment, and in particular in employment where he is required to respond to or deal with inquiries from people such as students, customers, other staff and supervisors and the public. We will deal with his capacity for employment as a computer service technician in detail because he did perform that work for almost two and a half years after his discharge.
18. As stated in X v Defence Force Retirement and Death Benefits Authority (1981) 3 AL N37 60, it is appropriate to look at evidence of how Mr Johnston performed that work insofar as it reflects on his capacity for the work at the time of medical discharge.
Physical Impairments
19. We look first to the physical impairments. There are now four relevant physical conditions. It is accepted by all medical experts that those conditions as at 11 March 1997 did cause some impairment or diminishing of capacity for civil employment. As background it is relevant to bear in mind that Mr Johnston had been classified as "home only, sedentary duties only" at his medical board examination in 1985 or 1986. His conditions in 1986 were noted to be degenerative and progressing.
20. On 23 January 1996 Mr Schofield, an orthopaedic surgeon, noted that Mr Johnston had been doing clerical work because of his inability to use his back normally and that he was having difficulty doing his limited duties. A lumbar myelogram reported (T103 p167):
Degenerative changes are present at L4-5 and L5-S1. A moderately large left sided posterior disc protrusion is present at L4-5 in association with L4-5 dorsal disc bulging. This fills the lateral recess and impairs filling of the L5 nerve root sheath bulging.
21. At the final medical board examination the following year, Mr Johnston was downgraded to medically unfit for all duties of military service. Dr Prentice, who did the final medical board examination, assessed Mr Johnston as having a large incapacity for all the three relevant occupations which, at that time, were described as computer operator, instructor on computers and radio operator. Dr Prentice noted the nature and extent of restrictions as:
Marked impairment of general mobility, unable to do any lifting, unable to stand for lengthy periods, only able to walk short distances, can sit 15 to 20 minutes then needs to move.
22. On the reports of Mr Schofield and Dr Prentice it is difficult to see why Mr Johnston was ever assessed as having only a small incapacity for civil employment. We find that the duties of civil employment would have been similar in nature to the clerical duties Mr Johnston was having difficulty performing in the Army. Mr Dubé relied on the reports of Mr Jones and Dr Hart. There is some confusion in Mr Jones' report. He seems to be saying that as at 27 March 1997 he assessed Mr Johnston as having a minimal incapacity to undertake employment as a clerk and a small incapacity for employment as a radio operator, although he actually uses the word "capacity".. He did not address the issue of why Mr Johnston had been found to be unfit even for his military clerical duties.
23. Dr Hart saw Mr Johnston on 8 April 2002. The Tribunal had his report and he gave telephone evidence. He volunteered that it is difficult to see someone in 2002 and give an opinion as to what their capacity for work would have been in 1997. We agree with that comment. However, doing the best he could, he too expressed the opinion that Mr Johnston would have been minimally incapacitated for the relevant occupation by his physical impairments which led to the invalidity retirement as at 11 March 1997. He said that he thought Mr Johnston had deteriorated so that when he saw him in 2002 he was moderately impaired by his relevant physical conditions.
24. Mr Johnson himself described his physical restrictions during the two and a half years he was working for CPTI and currently. On his evidence the position has not changed in that time, or not changed significantly. At all times he has had significant problems. He gave examples of problems during his employment which had led to his supervisor providing him with a trolley rather an expecting him to carry the computer monitors. He described his inability to bend which meant that he had done his work at bench height, and his supervisor had done any bending or crawling around on the floor which was necessary to connect cables.
25. The restrictions described by Dr Prentice on 11 February 1997 seem to be the same as the restrictions that Mr Johnston was describing in his evidence:
Marked impairment of general mobility, unable to do any lifting, unable to stand for lengthy periods, only able to walk short distances.
26. The only difference seemed to be that Mr Johnston said he can now only sit for approximately 5 minutes without having to move or get up, whereas Dr Prentice had a history of being able to sit for 15 to 20 minutes.. We find that Mr Johnston's condition when seen by Dr Hart in 2002 was much the same as when seen by Dr Prentice in 1997. We find that as at 11 March 1997 the degree to which Mr Johnston's physical impairment diminished his capacity to undertake the relevant civil employment was moderate.
27. We note that was the assessment given by Dr Hart in 2002 and we find there was no significant change between 1997 and 2002. We find Dr Prentice's assessment of large was not confined only to physical impairment but also took into account the PTSD. Dr Hart noted that it had been diagnosed by a psychiatrist, Dr Lowenstein, and was to be treated by the Vietnam Veterans’ Counselling Service at the Austin Repatriation Clinic.
Mental Impairment
28. Mr Johnston had described symptoms of PTSD to Dr Lowenstein on 7 February 1996. Dr Lowenstein wrote (T102 p164):
He also has psychological problems that he directly attributes to his employment and these include depression and pain and a burning rage especially about seeing himself as unemployable. He also describes, at the very end of the session, experiencing flashbacks as a result of his experiences in Cambodia, 11 months tour returned in December '92 including seeing children “culled” and being constantly under fire.
29. Although Dr Lowenstein said that he would refer Mr Johnston for further assessment in one month, that does not appear to have happened. Dr Prentice, in his report, had noted that counselling at the Austin Clinic was proposed at the time of the medical discharge. It seems that there was very little understanding of the severity of Mr Johnson's PTSD at the time of his discharge. However, shortly afterwards, on 14 May 1997, he saw Dr Van Der Linden. The evidence did not explain how that appointment was arranged.
30. Dr Van Der Linden described Mr Johnston as “suffering PTSD with depressed and anxious mood (chronic)”, and said he needed ongoing psychiatric and psychological treatment. In a form for the Department of Veterans Affairs, Dr Van Der Linden described Mr Johnston’s PTSD as “significant”, and said he needed psychiatric help.
31. That treatment did not occur. Mr Johnston said he "ran away" because he did not want the stigma of having psychiatric treatment. We find he did not realise how ill he was and neither did anyone else, other than perhaps Dr Van Der Linden, at that early time.
32. Mr Johnston had succeeded in finding employment for which he was suitably qualified and skilled at CPTI in February 1997. At the time he saw Dr Van Der Linden, he was holding that job. The account he gave to Dr Van Der Linden was that he was managing to control his PTSD symptoms adequately in the employment situation. We find that is why Dr Van Der Linden wrote that Mr Johnston was “only minimally affected from a vocational point of view” by his significant PTSD, and that he could work full time.
33. Dr Van Der Linden's completed form is at T122. The Tribunal has just paraphrased some of his comments (p220). He also referred to “intermittent irritability and social withdrawal”, to “being easily frustrated, often dissident, unable to control his anger”. In regard to occupation, at p224, Dr Van Der Linden wrote:
Frustration and irritability caused problems at work but he is able to distract himself or avoids conflicts.
In regard to subjective distress, Dr Van Der Linden wrote:
Irritability, uncommunicativeness, lack of enjoyment or interest in his daughter, reliving events in Cambodia with cues eg smells, helicopter sounds.
As to therapy, Dr Van Der Linden wrote:
Although he has not had treatment despite requesting same whilst in Army I believe he requires psychiatric care and may need medication.
34. Although Mr Johnston told Dr Van Der Linden that he had problems at work, but was able to distract himself or avoid conflict, that is not consistent with the evidence of his supervisor, Mr Fordham. It may well have been Mr Johnston's perception, but it was not Mr Fordham's perception. In his detailed statement Mr Fordham set out a history of Mr Johnston's attempt to hold his employment with CPTI (T235):
…
During the majority of 1997 Deema reported to me in my capacity as the Melbourne Education Supervisor and, as of September 1997, in my capacity at the Victorian Education Manager.
Within a fairly short period, it became clear to me that Deema was having problems managing his relationships with our customers and other members of Staff. In particular, he was inclined to be irritable, seemed to lack patience and was inclined to make inappropriate comments. During these difficult times I tried to support and counsel Deema. On a few occasions he also had discussions with our Victorian Regional Director, Mr. Nick Oklobdzija.
During this time Deema's commitment to his work, his desire to succeed and his willingness to assist and contribute to the success of our business were not an issue. However, his performance was being regularly compromised by his capacity to cope with other people and his inability to work in a team environment. On the many occasions that we spoke about these concerns and possible ways to improve the situation my intentions were always to encourage Deema to become more aware of the needs of other people and to become more tolerant towards his colleagues. When Deema was functioning well he was an asset to our team but when he was struggling he was very difficult to work with and tended to cause a lot of stress for himself and others in the workplace. Unfortunately, over the time many fellow Staff members had difficulty dealing with him because of his tendency to make inappropriate comments and his often hostile and intimidating demeanor.
In an effort to diffuse some of the impact from these issues and to focus Deema's efforts where they would produce maximum benefit for all involved, he was made Senior Maintenance Instructor (and later the Network Support person) and another person was employed to assume the bulk of the maintenance course teaching load. This new position meant that Deema could spend the majority of his time working away from our students carrying out background technical and network responsibilities. Given his solid technical knowledge and his commitment to the organization this seemed like an appropriate solution. Whilst this seemed to improve the situation generally it did not appear to change the underlying problems and issues that were fuelling his irritability and causing him to struggle to maintain an appropriate professional balance day to day.
Some of our many discussions were also part of our regular performance review process. During some of these reviews Deema achieved a performance bonus. At these times I felt that he needed to be encouraged. It was easy to see how hard he was trying to keep it all together and I felt that in some small way these bonuses might assist.
During his employment I was aware of the fact that Deema was receiving psychological counselling to assist him with the difficulties he was obviously experiencing. I am unable to access Deema's complete payroll and leave records at present but I have requested the return of his file from our Personnel archives. From personal discussions with Deema on many occasions I believed that the time off he was taking was primarily due to his medical conditions both psychological and physical and the various effects with respect to changing medication and his ability to cope generally within the workplace. At various times during his employment Deema had negotiated with myself flexible working hours to enable him to attend for medical treatment.
On or about Friday the 25th June 1999, Deema approached me in a distressed and angry state. In the discussion that followed he informed me that he had been running around looking for his gun and that if he had found it he would have shot everybody around him. I said to Deema that he had clearly crossed the line and that he needed help. Given the train of events over the last two years I said that I felt that I had no option but to terminate his employment. Deema said that he understood this. I believe that it was later that evening that he was admitted into a residential institution for psychiatric evaluation and care.
Unfortunately Deema ceased employment with us as of the 25th June 1999 for the reasons that I set out in my letter to him dated 25th June 1999 a copy of which is attached to this statement…
35. We find that, in spite of an extremely sympathetic and supportive supervisor in Mr Fordham, the employment situation broke down completely in June 1999, when Mr Johnston's employment was terminated and he was admitted to hospital for a number of weeks for treatment for his PTSD. He had somehow imagined that he was transported to Cambodia and had been looking for a gun, as he explained to Mr Fordham that day. Mr Dubé submitted that this was the result of a deterioration or a diminution in Mr Johnston's capacity for work, but that we should find he had only a small incapacity when he commenced his employment with CPTI.
36. We do not accept that submission. We find, on the basis of Mr Fordham's statement, his oral evidence at the hearing, the personnel file of CPTI and Mr Johnston's evidence, that Mr Johnston's conflicts with students or his inappropriate response to students led to a reorganisation of Mr Johnston's duties probably as early as April 1997, from the handwritten note on a document in the employment file. Mr Fordham stated that there were two reorganisations; at first Mr Johnston was removed from most teaching when he was promoted to senior instructor which was more administrative, and then he was made network support person. In that role, he no longer had any teaching duties at all.
37. We find from the CPTI file that those changes were in April 1997 and late 1997. Mr Fordham said that there were real problems right from the first month, and they led him to discuss the problems with his wife who was psychologist. He thought that was in the first half of 1997. Mr Fordham did not accept that the problems only became apparent about October 1998, when Mr Johnston started having regular counselling with a psychologist. He said although his wife had recommended that treatment, October 1998 was not the first occasion when he had raised his concern about Mr Johnston with her. He said it probably first came up in discussion at home in the first half of 1997. Mr Fordham did not agree with the suggestion put to him by Mr Dubé that the final episode, when Mr Johnston was transported in his mind back to Cambodia, was something quite different from the earlier problems. He said:
He was a liability throughout that I was trying to manage, that we were always at risk from. There had been similar episodes earlier but it was unfolding as an unveiling of stuff that was in existence very early in the piece.
38. When asked why he had persevered with Mr Johnston on the staff for almost two and a half years, Mr Fordham explained that, when he was good, Mr Johnston was very good. He added, secondly, that he felt that CPTI, and society generally, owed it to somebody who had a problem due to war service for his country to be as supportive as possible. We found Mr Fordham to be a very impressive witness. We accept his evidence in its entirety and find that, taken in conjunction with Dr Van Der Linden's evidence, it shows that the PTSD was substantially diminishing Mr Johnston's capacity for employment throughout his time with CPTI.
39. We give no weight to Dr Ratnayake's opinion for a number of reasons. First, because it was formed by an interview on 29 May 2002 and it is difficult, even for a very careful medical expert, to give opinions based on retrospective analysis. Secondly, we find that Dr Ratnayake misunderstood her task, even though it was clearly set out in the letter to her from the Authority (T221 p517). Thirdly, we find that Dr Ratnayake did not take a careful and thorough history. In particular, she failed to take an accurate history as to the most significant issue, Mr Johnston's capacity to work as at March 1997.
40. As to this, she wrote only one and a half lines which were in fact erroneous. She wrote that Mr Johnston had not worked since discharge – that was quite inaccurate. We accept Mr Johnston's evidence that he did tell Dr Ratnayake about his work with CPTI since discharge. We note that he referred to that work in a written document addressed to Dr Ratnayake which he said, and she agreed, he gave her at the interview. Further, because Dr Ratnayake had no history of the employment since service, she similarly had no history of the difficulties which developed during that employment, or of the final breakdown of the employment relationship, which was clearly attributable to the symptoms of the PTSD.
41. We also find Dr Ratnayake’s report confusing. She wrote that, on the basis of Dr Van Der Linden's report, which she had read, she accepted that Mr Johnston at the time of discharge was incapacitated due to depressive symptoms and unable to work. She wrote that he had improved when she saw him and displayed then only minimal PTSD symptoms. We found her opinions as to the relevant period were confused and unreliable.
42. As Mr Moore pointed out, Sheppard J in the Full Federal Court said in Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156 at 164:
The Act itself takes no account of his actual earning capacity at a given time, although the fact that he has engaged in particular employment will be a relevant factor for the Authority to consider when determining his percentage of incapacity. But there may be cases where, although a member is employed, he is doing his work with such difficulty or under such stressful circumstances that it is plain that he has not any real capacity for it. The fact that he is in employment may be due to the kindness of an employer or of fellow employees or both, or because of his ability, at least for the time being, to mask his disabling condition.
43. We find that this is one of those cases where, in spite of Mr Johnston having worked for almost two and a half years, albeit with a month off for psychiatric treatment in late 1998, we find that work does not demonstrate a real capacity for work. It was done with difficulty, and he only managed to hold the employment, in spite of the problems, because of the kindness of his supervisor, Mr Fordham, and others at CPTI, who approved the reorganisation to transfer Mr Johnston to duties which might have been more suitable for him.
44. We find that from March 1997 Mr Johnston's PTSD substantially diminished his capacity for civil employment in the relevant occupations. While he felt comfortable in the company of other veterans, his ability to socially interact with others was limited. We find that, as at 11 March 1997, the physical and mental impairments, because of which Mr Johnston was invalidity retired, diminished his capacity to undertake the relevant kinds of civil employment to a degree which was large, 60 per cent or more, class A. The decision under review will be varied to provide:
(1) Residual pain in right knee and pain and scarring, including neuroma, in right and left big toes are added as impairments that caused the invalidity retirement of Mr Johnston; and
(2) Under s 30(1) of the Act, it is determined that, as at 11 March 1997, the degree to which the physical and mental impairments, because of which Mr Johnston was invalidity retired, diminished his capacity to undertake the relevant kinds of civil employment was large, 60% or more – Class A.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J Dwyer, Mr C Ermert, Member, and Dr J H Maynard, Member
Signed: Josephine McKay
AssociateDate/s of Hearing 12 & 13 February 2004
Date of Decision 13 February 2004
Counsel for the Applicant Mr G Moore
Solicitor for the Applicant Mr G Isolani
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Ms K Arnold
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