LESLIE LINDGREN and REPATRIATION COMMISSION
[2009] AATA 236
•8 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 236
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5285
VETERANS’ APPEALS DIVISION ) Re LESLIE LINDGREN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date8 April 2009
PlaceBrisbane (Heard in Townsville)
Decision The Tribunal sets aside the decision under review, substitutes a decision that the applicant satisfied all of the requirements of s 24(1) of the Veterans’ Entitlements Act 1986 (Cth) and remits the matter to the respondent for the purpose of determining entitlements.
...............Signed.................
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS - disability pension - whether entitled to pension at Special Rate - whether war-caused diseases alone prevented veteran from continuing remunerative work – effects of disease prevented veteran from continuing remunerative work – no other feature that would prevent the veteran from working – decision under review set aside – substitute decision that all requirements of s 24(1) of the Veterans’ Entitlements Act 1986 (Cth) satisfied - remitted to the respondent for the purpose of determining entitlements.
Veterans’ Entitlements Act 1986 (Cth) ss 24, 24(1)(c)
Flentjar v Repatriation Commission (1997) 48 ALD 1
REASONS FOR DECISION
8 April 2009 Deputy President P E Hack SC Introduction
1.The applicant, Mr Leslie Lindgren, had a long and distinguished career of more than 30 years in the Australian Army. He served overseas in Rwanda, East Timor and the Solomon Islands. He has numerous medical conditions that are accepted as having arisen as a consequence of his service including post traumatic stress disorder (PTSD).
2.In these proceedings Mr Lindgren seeks a review of a decision of the respondent, the Repatriation Commission, refusing his claim for pension at the “special rate”, that is, the rate provided for by s 24 of the Veterans’ Entitlements Act 1986 (Cth). That decision was made on 13 November 2006 and was affirmed by the Veterans Review Board on 29 June 2007.
The legislation
3.Pension is payable at the special rate when the matters in paragraphs (aa), (aab), (a), (b), (c) and (d) of s 24(1) of the Act are satisfied. Mr Stoner, who appeared for the Commission, accepted that these matters were satisfied with the exception of s 24(1)(c). It provides:
“(1)This section applies to a veteran if:
…
(c) the veteran is, by reason of incapacity from war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not have been suffering if the veteran were free of that incapacity: and
(d) …”
4.Mr Honchin, counsel for Mr Lindgren, accepted that Mr Lindgren did not satisfy the ameliorating provisions in s 24(2) of the Act. Thus the single question is whether Mr Lindgren satisfies s 24(1)(c) of the Act. Authoritative guidance in the interpretation of that paragraph has been provided by the decision of the Full Court of the Federal Court in Flentjar v Repatriation Commission[1] where the Court described the issues that arise in a consideration of s 24(1)(c) as being:
“1. What was the relevant ‘remunerative work that the veteran was undertaking’ within the meaning of s 24(1)(c) of the Act?
2.Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work?
3.If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work?
4.If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity?”
[1] (1997) 48 ALD 1, 4-5.
Factual background
5.There was no controversy about the background facts. Mr Lindgren left school at the age of 13 and worked in a meatworks for the next few years. He
joined the Regular Army in 1975, just short of his 20th birthday. After his initial infantry training he trained in stores. In 1987 he moved from the infantry to Q-stores. He continued working in stores throughout his career and attained the rank of Staff Sergeant in 1994.
6.Mr Lindgren first consulted Dr Michael Likely, a psychiatrist, in February 2000 whilst still a serving member. In 2003 Dr Likely diagnosed him as suffering from PTSD, complicated by alcohol abuse, arising from service in Rwanda in 1994 and subsequently in East Timor. Dr Likely prescribed medication for Mr Lindgren. He continues to treat Mr Lindgren and sees him approximately monthly. Mr Lindgren did not report his psychiatric difficulties to the Army as he was concerned that if he did so it would lead to him being discharged as medically unfit. Mr Lindgren’s PTSD was accepted as being war-caused by the Commission in June 2003 with effect from December 2002.
7.Mr Lindgren’s evidence refers to increasing difficulties relating to other people in the Army over the years. There was an incident of insubordination whilst he was serving in Rwanda however his commanding officer did not take action against Mr Lindgren as a consequence of his behaviour. Later, when in Townsville and shortly prior to deployment to the Solomon Islands, Mr Lindgren had an altercation with his OC. That incident was resolved however there was a further incident involving Mr Lindgren and the same officer during the deployment in the Solomons in the second half of 2003. Mr Lindgren “had words” with this officer and ended up shouting at him in front of other soldiers. Despite these incidents Mr Lindgren was well treated by his OC but says that the OC treated the more junior soldiers poorly. This caused a lot of conflict between the two men. Mr Lindgren was involved in a further incident on his return to Townsville.
8.These incidents led Mr Lindgren to conclude that he was not able to control himself and to feel that he was not performing the way he should. He decided that getting away from the environment of Townsville was a solution so he applied for, and received, a transfer to a posting at Coffs Harbour with the 41st Battalion of the Royal New South Wales Regiment. That was a Reserves base but Mr Lindgren was posted fulltime. He performed the duties of the training warrant officer as well as those of stores clerk. Initially, things went well there however around the middle of 2005 he was involved in an incident with his superior, a quartermaster, who questioned Mr Lindgren’s competence and efficiency. That caused Mr Lindgren to develop an intense hatred for the quartermaster that persists to this day. It was evident even when he gave his evidence that he harbours an intense dislike towards this person.
9.In any event, after this incident Mr Lindgren determined to get out of the Regular Army and transfer to the Army Reserve where he hoped there would be less pressure. He had otherwise intended to remain in the Army until his 55th birthday. The process by which this transfer was achieved is not entirely clear however Mr Lindgren seems to have left Coffs Harbour in early December 2005 and returned to duty with the Regular Army in Townsville in early 2006 after a holiday break.
10.There are apparently conflicting reports in the material from the period of Mr Lindgren’s service at Coffs Harbour. One report, from a Major Ferndale, describes Mr Lindgren as an enthusiastic senior non-commissioned officer who was capable of performing all aspects of his primary and deployed role. There is, though, a letter from a Warrant Officer Sexton which speaks of him having difficulty coping with stress. The letter says[2]:
“There were a number of times that SSGT Lindgren would behave in a manner outside of his normal personality. He became withdrawn and could not handle large groups of people or going to Lismore to the unit Headquarters. On these occasions he would become stressed and withdrawn.
SSGT Lindgren was counselled by the OC and 2IC on his future employment, as it was becoming apparent that he was not coping with the work load and that he may have to look for a less stressful position either within the army or outside of the army.”
[2] Obvious typographical errors have been corrected.
Additionally the clinical notes of his medical practitioner from that time refer to “nerves – getting worse” in August 2005 with a referral to a psychologist at that time because Mr Lindgren was recorded as feeling that he needed counselling. It is interesting to compare those notes with those from the Army Psychological Corps made in April 2004 which record Mr Lindgren as being quite dismissive of any need for counselling.
11.On his return to Townsville Mr Lindgren initially returned to the Regular Army. His transfer to the Reserves was effected on 20 March 2006 and he was attached to the 31st Battalion of the Royal Queensland Regiment at the Jezzine Barracks. From that time Mr Lindgren could work essentially at his own pace and worked on average three days per week. From that time Mr Lindgren made enquiries of persons known to him about the possibility of employment. He did not respond to advertised vacancies but took up with people known to him who he considered might be in a position to offer employment. Nothing came of these enquiries. He stopped making enquiries after June 2006.
12.In late May 2006 Mr Lindgren was involved in a serious altercation with a corporal who questioned his competence. He had to be restrained from assaulting the corporal. He described in his evidence how he had been planning to throw the corporal off a loading dock. He was then spoken to about this incident by a sergeant with whom he was on very good terms. He then threatened that sergeant with a knife. He went home immediately.
13.At this point Mr Lindgren came to realise that if he stayed in the Army he “would do something silly”. He returned to the barracks the following day, which appears to have been 1 June 2006, and asked for some time off to see his medical practitioner. He told Warrant Officer Daniels that he had been experiencing flashbacks from his time in Rwanda and did not want to cause any harm to other military personnel. He saw his general practitioner, Dr Fraser, who advised him to leave the Army. Mr Lindgren did not return to the Barracks after 1 June 2006 except for the purposes of completing paperwork.
The medical evidence
14.Mr Lindgren was not able to see Dr Likely until 25 July 2006. Dr Likely was of the opinion that Mr Lindgren’s PTSD alone rendered him totally and permanently incapacitated from undertaking any type of remunerative employment. Dr Likely did not suggest or recommend to Mr Lindgren that he leave the Army but he agreed with Mr Lindgren’s decision to do so.
15.Dr Likely expanded on that opinion in his oral evidence. He said that Mr Lindgren was in a state of hyper arousal. He described Mr Lindgren’s symptoms as difficulty in sleeping, irritability leading to angry outbursts, poor concentration and hypervigilance. This cluster of symptoms led him to the conclusion that Mr Lindgren was incapable, because of his PTSD, from undertaking employment.
Consideration
16.At the outset I should say that Mr Stoner, for the Commission, accepted that Mr Lindgren gave evidence to the best of his ability and that no issue of personal credit arose. That, I must say, accorded with my view of Mr Lindgren’s evidence. I should also record that my impression of Mr Lindgren is that he is evidently afflicted by emotional difficulties arising, I assume, from his PTSD. He displayed a range of extreme emotions whilst in the witness box including tears and flashes of irritability. He struck me as a perfectionist who set himself very high standards and who did not tolerate any criticism or suggestion that he had not met high standards. These matters did not lead me to conclude that I ought not rely on his evidence.
17.The parties are agreed that the remunerative work that Mr Lindgren was undertaking was that of storeman. The next question is whether Mr Lindgren is prevented by his PTSD from continuing to undertake that work. The evidence of Dr Likely provides an affirmative answer to that question. Difficulty in concentration, irritability and angry outbursts are plainly features that operate in Mr Lindgren’s case to prevent him pursuing that occupation, indeed any occupation that requires interaction with others or any attention to detail.
18.Mr Stoner pointed to the results of Army medicals in January and February 2006 as pointing to a contrary conclusion. Those medical examinations showed that by reference to the Army’s medical standards Mr Lindgren had a “satisfactory” level of psychiatric stability in the military environment. But it is also to be borne in mind that those assessments were made at a time when Mr Lindgren had been diagnosed for some years with PTSD by a consultant psychiatrist. Mr Lindgren’s psychological records demonstrate a person reluctant to discuss with Army personnel any perceived difficulties in coping. That, according to Dr Likely, was a common trait amongst soldiers, an inference that I would have been willing to draw in Mr Lindgren’s case in any event.
19.The focus of the submissions for the Commission was on the next question, whether the PTSD was the only factor preventing Mr Lindgren from continuing to undertake remunerative work. The case for Mr Lindgren, it was said, was not made good on the evidence and it was speculative, it was submitted, to say that the various altercations were caused by PTSD alone. These behaviours, it was said, could equally be the result of perfectionism or a normal response to criticism. Reference was made to the report of Major Ferndale and Mr Lindgren’s assessment in February 2007 that his PTSD had not become worse since June 2004. The Commission accepts that there appears to be no other disentitling factor such as non-accepted medical conditions or age that might have contributed to Mr Lindgren being prevented from continuing to undertake remunerative work[3].
[3] Exhibit 9, paragraph 27.
20.I am unable to accept the Commission’s argument. Mr Lindgren’s evidence demonstrates an increasing and quite dangerous intolerance of criticism. Despite holding a responsible rank within a disciplined force he became increasingly unable to accept direction from his superiors. He had the
insight to recognize that failing and arranged to transfer to what he hoped would be a less challenging environment. That was not to be and he had a falling out with his immediate superior at Coffs Harbour. His evidence of his lasting and intense hatred of that officer was quite remarkable and transcended any normal or measured reaction. The evidence of WO Sexton points to an increasing inability to cope with the stresses of daily life within the Army.
21.Mr Lindgren’s evidence was that the incident in Coffs Harbour in about the middle of 2005 persuaded him that he had to get out of the Army. But that was not, in any sense a plan to “retire” as the submission for the Commission suggested. It was a plan to get away from the conditions that aggravated him because of his PTSD. Absent the PTSD there is no reason to suppose that Mr Lindgren would have done other than remained in the Regular Army to the age of 55. Having decided that he had to get out of the Army he put that plan into action by seeking a transfer back to Townsville and to the Reserves. His responses during the May 2007 went far beyond a normal response to criticism or direction and took him to the edge of a quite violent response. It was, in effect, the last straw. His general practitioner and his psychiatrist both concurred with his decision to leave the Army.
22.It is true, as the Commission points out, that in February 2007 Mr Lindgren completed a form that said, in terms, that his PTSD had not worsened since 2004. I am not sure that Mr Lindgren is in the best position to make that judgment but in any event the evidence points to a contrary conclusion, at least up to June 2006.
23.Where the evidence is that Mr Lindgren has had PTSD for a number of years, that PTSD causes irritability and angry outbursts and that Mr Lindgren has experienced increasingly severe and irrational outbursts of temper I readily conclude that it is the PTSD alone that causes the outbursts and that prevents him from working, all the more so where it is there is no other feature suggested or apparent that might contribute to an inability to work any longer. Thus I am satisfied that it was the PTSD alone that prevented Mr Lindgren from continuing to undertake service in the Army and to pursue remunerative work.
24.There is no question that Mr Lindgren is suffering a loss of salary. His evidence, which I accept, was that he had planned to stay in the Army until the age of 55 and there is no reason to think that someone with his obvious attributes would not have gained civilian employment on discharge from the Army but for his PTSD.
Conclusion
25.It follows that I would set aside the decision under review and would substitute a decision that Mr Lindgren satisfied all of the requirements of s 24(1) of the Act. The matter will be remitted to the Commission for the purpose of determining entitlements.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ....................Signed.............................
Melissa Hamblin, AssociateDate of Hearing 23 March 2009
Date of Decision 8 April 2009
Counsel for the applicant Mr D Honchin
Solicitors for the applicant Purcell Taylor
For the Respondent Mr J Stoner
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