Lester and Defence Force Retirement and Death Benefits Authority - [2002] AATA 572

DECISION AND REASONS FOR DECISION [2002] AATA 572

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1439

GENERAL ADMINISTRATIVE DIVISION       )          V02/223
           Re      BARRY LESTER
  Applicant
           And    DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
  Respondent

DECISION

Tribunal Senior Member Dwyer Mr A Argent, Member Miss E A Shanahan, Member

Date28 June 2002
PlaceMelbourne

Decision      The Tribunal affirms the decisions under review.
  (Sgd) Joan Dwyer
  Senior Member
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – review of classification – discharge 1972 "Services No Longer Required" – successful application in 1999 to have discharge treated as on medical grounds due to incapacity from generalised anxiety disorder – classification of moderate incapacity Class B under s 30 of Defence Force Retirements and Death Benefits Act 1973 – application for review – classification upgraded to Class A from 12 December 1996 – application for review of original classification and date of upgrading – evidence unsatisfactory – method of resolving issue – decisions affirmed.
Defence Force Retirements and Death Benefits Act 1973 s 30 (1) (2), and s 34 (1), (2) (3)

McDonald v Director-General of Social Security (1984) 6 ALD 6

REASONS FOR DECISION DELIVERED 28 JUNE 2002

Senior Member Dwyer Mr A Argent, Member Miss E A Shanahan, Member

This application seeks review of two reviewable decisions by the Defence Force Retirement and Death Benefits Authority ("DFRDBA"). The decisions are helpfully described by Mr Dubé in his outline of submissions as follows:
(a)a decision dated 16 May 2000, confirmed upon reconsideration on 17 November 2000, under s.30 of the Defence Force Retirements and Death Benefits Act 1973 ("the Act") that the applicant's percentage of incapacity in relation to civil employment is 40% and accordingly the applicant be classified Class B on and from 31 October 1972 (the day after the date of discharge); and
(b)a decision dated 17 November 2000, confirmed upon reconsideration on 15 February 2002 under s.34 of the Act that the applicant's percentage of incapacity in relation to civil employment is 60% and accordingly the applicant be reclassified Class A on and from 12 December 1996.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") in matter V2000/1439. The Tribunal also had a bundle of additional T documents lodged in respect of the second reviewable decision and also the exhibits tendered during the hearing. Those documents consisted of the reconsideration decision of 15 February 2002 and a decision paper with attachments described as "all relevant evidence" in respect of that decision. In addition the Tribunal received some applicant's exhibits A1-A5 during the hearing.
Mr Trigar of Counsel appeared for Mr Lester. Mr Dubé, a Principal Solicitor with the Australian Government Solicitor, appeared for the respondent. Mr Lester and his wife gave evidence. Evidence was also given on Mr Lester's behalf by his current general practitioner, Dr Broom. The respondent called Dr Kenny and Dr D'Ortenzio both of whom are psychiatrists.
MR LESTER'S DISCHARGE FROM THE NAVY
Mr Lester enlisted in the Navy on 24 November 1963 at age 15 years. He was already an accomplished musician and was accepted into the Navy as a junior recruit musician. On 17 October 1972 his Commanding Officer recommended that Mr Lester be discharged, "services no longer required" (T29). The Commanding Officer recognised Mr Lester's ability as "a fine lead drummer in a successful drum display unit of the band", but stated that his social, marital and disciplinary problems far outweighed his contributions to the service. Mr Lester was discharged from the Navy, services no longer required ("SNLR"). The date of discharge is not easy to find. DFRDBA has taken it to have been 30 October 1972. Between 1972 and 1987 Mr Lester did not challenge that form of dismissal.
From the T documents it seems that Mr Lester's medical problems commenced during the year 1971. There are a number of medical attendances recorded (see T6 – T12). On 30 November 1971 (T11) the medical officer noted:
Nervousness occasional palpitations a feeling that heart is racing and going to jump out of head
restlessness general easy fatigability fine tremor of hands difficulty in focussing eyes – doesn't bother reading any more.
Appetite good with no weight loss.
Symptoms accentuated after a night of drinking.
Works 5 nights/week in a band – stuffy smoke filled atmosphere.
OE. Irritable 24 year old.
Skin warm but not moist.
Fine tremor of hands.

A note for 6 December 1971 reads (T12):

Patient still anxious and depressed (although has plenty of reason).
working 5 nights/week.
Marital problems ++.

The T documents (T13 – T14) show that during 1972 Mr Lester reported with anxiety symptoms often relating to domestic difficulties in his first marriage. On a number of occasions the records show that Valium was prescribed. On or about 12 September 1972 Mr Lester went absent without leave ("AWOL") to see his wife who had been admitted to hospital following a suicide attempt.
On 14 September 1972 Mr Lester's Commanding Officer referred him for a psychiatric examination. The referral shows that the Commanding Officer had run out of patience. He wrote:
His mental outlook towards his work seems to be completely overshadowed by his monumental marital and financial difficulties, resulting in frequent lapses of concentration of late and leaving a lot to be desired as far as his appearance and personal cleanliness, is concerned.
I cannot say that this man is carrying out the duties of what is expected of a Leading Musician. He has constantly been either adrift or missing altogether due apparently to his inability to cope with his marital problems. This unreliability is having a detrimental effect on his peers from a morale point of view.
I don't think that I have ever spent so much time on the personal problems of any man before. Between constantly sorting out his disciplinary, financial and marital problems the amount of time taken up is more than one can afford. There appears to be constant confrontations between him and his wife, mainly I understand, through bad financial management. It is difficult to say who is to blame as from his information they appear to be a matched pair.
He has stated that his wife does not want him to leave the service, and does not appear to have an opinion either way himself, however, in view of his extreme unreliability I consider that it would be in the best interests of the service if he was discharged.
The psychiatrist who saw Mr Lester was not sympathetic. He wrote (T26 p29):
I find it hard to believe this man's story. I feel sure he is trying to work a discharge on medical grounds. I can't find any psychiatric evidence to support this but it seems his Commanding Officer's view of his disposal is the most appropriate.
The Manly District Hospital wrote a letter of support (T27) saying that Mr Lester had been required to look after his wife after she had been admitted following an overdose. A social worker wrote a report saying (T28 p31):
Longterm marital and financial problems exist and appear to stem from the disturbed personalities of both sailor and wife. Wife has an impulsive hysterical, acting-out personality, manipulating both her husband and social environment by her suicide attempts. Sailor is grossly immature, irresponsible and unrealist [sic] and has placed family in a great deal of debt. Neither has any insight into their behaviour and its consequences and are unable to use any help given to them.
It is understood that sailors [sic] domestic problems have already greatly interfered with his service and that this has gradually alienated him from both officers and fellow sailors.
It would appear inevitable that this familys [sic] problems will deteriorate further and require further compassionate consideration in which case he will continue to be a liability to the service.
A full report of 17 October 1972 by the Commanding Officer recommended Mr Lester's discharge. It set out details of financial, disciplinary and matrimonial problems (T29). Further problems were reported on 20 October 1972 (T30) and a Rear Admiral reported that Mr Lester wished to obtain discharge. The T documents contain a Minute of 13 November reporting that the discharge was approved on the ground that Mr Lester's services were no longer required ("SNLR") (T36).
THE FIRST APPLICATION TO CHALLENGE THE SNLR BASIS FOR DISCHARGE
In about 1987 Mr Lester applied for a Defence Services Home Loan which was refused on the basis that he had been discharged on the ground of misconduct or misbehaviour as defined by s 4(2)(c) of the Defence Services Homes Act 1918. Mr Lester's solicitor wrote a letter (T38) stating that he had been enlisted (by his parents) for 12 years on 24 November 1963 when he was aged 15, and that the decision whether Mr Lester would remain in the Navy or elect to be discharged was his alone, and that his conduct at the time of discharge was shown as very good. The solicitor's letter explained that there were no disciplinary problems before 1971 and that the problems which arose related to Mrs Lester's health. The solicitor wrote (T38 p47):
We are instructed that the actual reason for his discharge was that Mr. Lester believed he was unsuitable for his job at that particular time due to his matrimonial problems and resultant family commitments.
The solicitor's letter led to a reconsideration and Mr Lester was granted the home loan he sought.
THE CLAIM FOR PENSION UNDER THE VETERANS' ENTITLEMENTS ACT 1986
The next matter Mr Lester raised with the Department of Veterans' Affairs ("DVA") was the grant of a pension on the ground of his long history of anxiety with panic attacks and tachycardia. On 26 May 1994 he lodged a letter from his treating general practitioner, Dr Koop of Wedderburn, claiming that the condition began whilst he was on active duty in Vietnam. DVA arranged for Mr Lester to attend a psychiatrist, Dr Bomford, who he saw on 23 September 1994 (T45). Dr Bomford obtained a history that the first attack of tachycardia was about six months after Mr Lester had been posted to HMAS Penguin [a shore posting] to pursue musical aspects of his naval service. It was his opinion that it was not related to Mr Lester's service on voyages to Vietnam.
Mr Lester's claim to have generalised anxiety disorder was accepted as war-caused on a report from Dr Cooper, a psychiatrist, dated 10 May 1996 (T50). The basis was that the anxiety was first experienced during one of Mr Lester's four brief trips to Vietnam and was subsequently inappropriately managed within the services. On 27 July 1998 the Administrative Appeals Tribunal made a decision by consent providing that pension be paid to Mr Lester at the special rate with effect from 26 March 1996.
Some time after 9 August 1999, Mr Lester wrote an undated letter seeking to have his SNLR discharge changed to an invalidity retirement on the basis of his entitlement to a special rate pension and the fact that he had been treated for an anxiety disorder for two years prior to discharge. He wrote that he had not been able to sustain remunerative employment since discharge and added that he was still addicted to diazepam as a result of inappropriate treatment during service.
On 4 November 1999 Dr Luke, a Department of Defence Medical Officer, wrote a report (T68) after having reviewed Mr Lester's file. Dr Luke concluded (T68 p148):
There is overwhelming evidence that Mr Lester was suffering from severe anxiety and depression at the time of his discharge from the RAN and had, in fact, been ill for almost two years. I am unable to comment on why his psychiatric condition was not considered serious enough to warrant medical downgrading either by undergoing an Interim Medical Survey early on in his illness or action taken for a Final Medical Survey at his discharge medical. The clinical picture of chronic and worsening symptoms of anxiety and depression, dependence on diazepam and alcohol and inability to carry out RAN duties, would make a serving member today not only unfit for deployment, but also probably unfit for further military service.
In the past, psychological and psychiatric conditions were poorly understood in a military environment and not tolerated. They were often ignored or, if recognised, treated with medication that is now known to be highly addictive and of little use. In the 1970, anyone with such problems was regarded as simply wanting to shun their military duties, given the deployment situation to Vietnam at the time. In the last ten years the emotional effects of war are better understood and potential problems are recognised and managed immediately. In the meantime, there are many genuine cases of men and women emotionally scarred by past wars, with too many others trying to rort the system. The challenge comes in trying to distinguish between the two groups.
On the balance of probabilities as opposed to possibilities, it is therefore considered that Mr Lester was wrongly discharged from the RAN and would have met the criteria for a medical downgrading to at least Cat 8. It is difficult to state whether he would have been discharged as MUNS as this is usually made after a few Surveys and/or poor response to appropriate treatment to which Mr Lester was not subjected.
On 27 January 2000 a decision was made (T69) that Mr Lester could have been diagnosed medically unfit in terms of s 37 of the Act which reads as follows:
Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the Chief of Navy, the Chief of Army or the Chief of Air Force or a person authorized in writing by the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.
On 26 April 2000 the DFRDBA decided to treat Mr Lester as if he had been retired medically unfit (T79).
The next step was to determine Mr Lester's invalidity classification in accordance with s 30 of the Act. On 16 May 2000 a decision was made to classify Mr Lester Class B. The decision-maker considered (T88 p196) that:
(a)the kind of civil employment which a person with Mr Lester's skills, qualifications and experience might reasonably undertake was Musician;
(b)Generalised Anxiety Disorder constituted Mr Lester's physical or mental impairment that was the cause of the invalidity or incapacity by reason of which he was retired from the Defence Force; and
(c)the impairment referred to in (b) above diminished his capacity to undertake civil employment as a Musician to a moderate degree thereby resulting in an overall moderate degree of diminution (both at discharge and on review).
On 6 July 2000, Mr Lester sought review of the decision of 16 May 2000 (T92). In the process of reviewing that decision the DFRDBA obtained reports from Dr D'Ortenzio dated 23 August 2000 (T103) and Dr Kenny 25 August 2000 (T104) as to their consultations with Mr Lester about the time of his application for pension under the Veterans' Entitlements Act 1986 Act 1986. The doctors were asked for their opinions as to Mr Lester's capacity to undertake civilian employment as a musician between 31 October 1972 and the time of the reports.
Dr D'Ortenzio diagnosed generalised anxiety disorder and panic disorder. He had treated Mr Lester between 12 December 1996 and 20 November 1997. He wrote that when he had started seeing Mr Lester, 25 years after his discharge, his generalised anxiety disorder and panic disorder were quite chronic. He expressed the opinion that Mr Lester's conditions would have been with him since discharge and would have made it impossible for him to report regularly for work, and that his use of alcohol and diazepam to control his anxiety symptoms would have made it very difficult for Mr Lester to perform adequately. He concluded that it was his view that Mr Lester's capacity to undertake employment had long been diminished to the over 60% category.
Dr Kenny (T62 and T104) diagnosed generalised anxiety disorder and substance abuse. He said that when he saw Mr Lester in April 1998 he considered him to be quite unfit for any employment because of his overall psychiatric state which was complicated by depression. He wrote "I have no idea really of the extent to which he was working effectively up until 1980". He also added that he thought the disability had progressed with the passage of years.
On review the DFRDBA changed the diagnosis of the condition which caused the incapacity by reason of which Mr Lester had been treated as having been retired, to "generalised anxiety disorder with panic and substance abuse" (T109). The DFRDBA set out the following matters as to Mr Lester's history of employment post discharge (T109 p245-246):
in a statement of reasons for decision dated 27 August 1996 the Veterans' Review Board, following a hearing at which Mr Lester had given testimony, had stated,
"For the latter part of the 1970's he was an itinerant musician travelling Australia and playing with various bands. For the period 1980 to 1982 he held down a post as a music teacher with the Department of Education. He was not re-appointed and has not performed any paid work since 1982."
With regard to the reported employment as a music teacher, the Authority noted that in his letter of 6 July 2000 Mr Lester had stated,
"As for working since discharge I taught at the local PRIMARY SCHOOL 2 hrs a week in a job (CASUAL) with an agreement with the principal I could leave if I felt unwell he knew of my disabilities"
in his report dated 23 September 1994 Dr Bomford had stated,
"these attacks have occurred without rhyme or reason up to weekly over the years. … Originally they lasted two hours. Nowadays they are less frequent (about 3 weekly) and dissipate in half an hour. They have undermined his confidence in social and professional situations and have prevented him from pursuing a profitable career as a musician. … He can now manage social and professional events when he knows he can be in control of his exits and entrances. … He is the current president of the RSL and he joins a local group in concerts. He teaches music at the high school."
[I]n a report for the Department of Veterans' Affairs dated 1 August 1996 Dr P. Koop, a general medical practitioner, had stated,
"Frequent panic attacks interfere considerably with work capacity and are probably the main reason for his inability to hold down a job for more than a few months. … Has not been able to hold down stable employment (exited from many jobs). … I believe his chances of gaining successful employment, given his medical problems and previous employment history, are very slight."
In a subsequent report written in 1996 Dr Koop had stated,
"Feels he lost his job as a teacher on many occasions because he was suspected of being an alcoholic because of two attacks."
in a report dated 10 May 1996 Dr J. Cooper had stated,
"Mr Lester has not been able to sustain stable employment since leaving the Navy at age 24. He remains depressed by how his musical career has been curtailed by his anxiety disorder."
in a report dated 24 April 1998 Dr Kenny had stated,
"[Following his discharge] He worked on the Gold Coast, playing in a band to live, travelled around Australia and is currently on a disability pension. He last worked as a music teacher for the Education Department in Victoria in 1982 for a year, but his Contract was not renewed and he thinks that might have been because of his drinking and his irritability. He hasn't worked effectively since that time, has done a little bit of casual work in music in the past but not recently."

The DFRDBA concluded, at T documents p248, on the issue as to capacity for employment:
In weighing the advice of Dr Kenny and Dr D'Ortenzio, the Authority observed that, from Mr Lester's work history as known, it did not appear that his ability to hold down regular full-time employment had ever been tested. In the Authority's view, his initial casual and itinerant work as a musician was likely to have been a matter of choice, given that he had had a musical band while in service and had pursued employment with such bands immediately afterwards. In those circumstances, and in light of the fact that Mr Lester had not required regular psychiatric care for some 24 years following his discharge, the Authority gave the greater weight to Dr Kenny's view that his impairment had increased, with the passage of years, to its present large degree. On balancing all the evidence, it was of the view that Mr Lester was likely to have been significantly less impaired immediately following his discharge than when, in December 1996, he had commenced regular psychiatric treatment with Dr D'Ortenzio.
Thus the Class B classification as at 30 October 1972 was affirmed. However the DFRDBA decided that the classification should be increased to Class A from 12 December 1996, when Dr D'Ortenzio commenced treating Mr Lester. From that date it found Mr Lester's incapacity from "generalised anxiety disorder with panic and substance abuse" had diminished his capacity to undertake employment as a musician to a large degree, rather than to a moderate degree, as was the case from 30 October 1972 to 16 December 1996.
Mr Lester then sought review of the date of the increase in degree of incapacity. That decision was affirmed. It is that decision of 17 November 2000 which is the second reviewable decision in this matter.
The DFDRBA in the Statement of Reasons for the second reviewable decision made the point that Mr Lester's employment history provided little insight into his actual capacity for employment. He had, according to Centrelink records, assumed a carer's role in 1982 and ceased to pursue employment. The DFRDBA referred to medical records going back to 1978 which had been lodged for that review. Dr Tonkin on 12 January 1978 at a cardiac clinic had recorded that Mr Lester was a "30 year old musician and car repairer by day" (pp53 and 55 of Tdocs in V2002/223). The DFRDBA set out a careful analysis of Mr Lester's medical records for 1984-2000. The DFRDBA pointed to inconsistent statements by Mr Lester, for instance, on the one hand he said he had not worked since his discharge from service, except for some minimal teaching. On the other hand it seemed that he had at times told doctors that he had been "sacked from many jobs" due to drinking or panic attacks or that he had musician or teaching jobs other than teaching two hours a week in a primary school as he had stated in his request for reconsideration.
The reasons for decision of the DFRDBA stated at paragraphs 32-35:
The Authority noted that it now had available to it medical information on Mr Lester dating from as early as 1978, having previously only had access to evidence relating to 1994 onwards. The Authority did not consider that this new evidence supported a finding of a large incapacity for employment at any earlier point than that which it had already determined. While the evidence was certainly indicative of Mr Lester drinking to excess, such drinking was observed to be confined largely to the weekends or after working hours and at times he was able to abstain from alcohol for several months at a time. There was no evidence of him being treated for any alcohol related conditions or being referred for detoxification. In 1978 the tachycardia attacks were occurring only monthly and by 1990 had ceased altogether, or were at least very well controlled, following the prescription of betabloc for his hypertension. The Authority also noted that, in 1990, Mr Lester's general practitioner also considered his anxiety state was well controlled by medication when referring him to an opthamologist. The Authority also noted that while he was prescribed valium continuously during this time, although various doctors warned him of the inadvisability of this, the dosage was, apart from isolated instances, consistent at 5 mgs per day and on occasions less than this. The Authority further noted that Mr Lester did not raise the debilitating panic attacks with his doctor or seek treatment for them. Nor, the Authority, noted did he indicate any difficulty sleeping or seek treatment to assist him in this respect.
The Authority noted that on 17 November 2000 it had confirmed the authorised person's decision that Mr Lester had been incapacitated to a moderate extent at discharge for his only employment kind of musician. The Authority considered that the evidence, both existing and new, indicated that the only restrictions Mr Lester was likely to have experienced for work as a musician due to his retiring impairment was the risk of a panic attack, which he was experiencing monthly on average, occurring whilst he was actually performing. The Authority also considered that, even though Mr Lester appeared able to restrict his alcohol intake when necessary, there may have been infrequent occasions when this could have an impact on his ability to perform. In respect of his use of valium, the Authority noted that there was no evidence to suggest the dosage of 5mg per day had any impact on Mr Lester's ability to function. The Authority therefore remained convinced that the moderate assessment of incapacity adequately allowed for these restrictions.
With respect to any subsequent deterioration in Mr Lester's condition, the Authority noted that it had previously considered that Mr Lester's incapacity for employment had progressed to large in 1996, as it was at this time that he had needed to consult a number of psychiatrists. The Authority was concerned to note from the material summonsed by the AAT, Mr Lester's clinical records and Mr Lester himself that, in 1994, he had determined to pursue a claim for benefits from the Department of Veterans' Affairs and that all psychiatric referrals had been for the purpose of the preparation of reports for this claim, not due to a sudden deterioration in his condition. The Authority was further concerned that much of this psychiatric opinion on Mr Lester's capacity for employment had been based on his account of his condition which was at odds with other evidence now available. The Authority noted, for example, that Mr Lester had claimed daily alcohol consumption of 160gms, or four times the safe limit, which is not consistent with the clinical notes, and valium usage of three or four times what was noted and prescribed by his general practitioner. The Authority also noted that Mr Lester was said to live a socially isolated lifestyle when he had recently been (and perhaps still was at the time) president of the local Sub-branch of the RSL, was joining local groups for concerts, played lawn bowls and had had some involvement teaching music at the school. The Authority also noted that much of the assessment of Mr Lester's capacity for employment had been based on his unreliable and unsubstantiated account of his difficulties with employment, his frequent sackings and also his unemployed state since 1982 which, as had been noted above, was in all likelihood due to his demonstrated need to take on a carer's role for his family rather than an indication of his physical or mental incapacity. The Authority further noted that a 1999 report indicated that from a psychiatric point of view Mr Lester had been "pretty stable over recent years".
Having regard to the lack of any evidence within Mr Lester's clinical notes or the report of Dr Tonkin in 1978 of any deterioration in Mr Lester's condition between discharge and 1996, the Authority remained of the opinion that an increase in Mr Lester's classification to Class A was not warranted from an earlier date. The Authority also expressed concern, in view of its observations in paragraph 34 above, on whether the reclassification from 12 December 1996 was in fact justified on the evidence now available. It resolved however to allow this decision to stand but to request that an immediate independent review of Mr Lester's capacity for employment be arranged.
The Authority resolved (Statement of Reasons pp24-25)
(a)to determine that, at the time of its decision, the kinds of civil employment which a person with Mr Lester's vocational, trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) was musician and music teacher;
(b)to determine that generalised anxiety disorder with panic and substance abuse constituted his prescribed impairment;
(c)to confirm its decision that Mr Lester be classified 60% Class A with effect from 12 December 1996; . . .

EVIDENCE AT THE HEARING

Mr Lester explained that his first marriage broke up in the year after he was discharged from service and he then met his second wife. He and she moved to Queensland, partly to get away from the access arguments with his first wife, who had started a relationship with his best friend, and partly because it was hoped his second wife's relatives in Queensland would offer him work. That did not occur and he registered for unemployment benefits immediately and while in Queensland entered musical talent quests about once a fortnight. He said he won a lot of the competitions.
In 1978 Mr and Mrs Lester moved to Findon, South Australia, where he was offered a house rent free. He started seeing Dr Wilkinson there and was then referred to a cardiologist, Dr Tonkin, for tachycadia. It was Dr Tonkin who described Mr Lester as a musician and car repairer. Mr Lester said he described himself as a musician because that was what he was qualified to do. He said Dr Tonkin must have added the reference to him being a car repairer because he told him he spent his days repairing an old car. He said that while he lived in South Australia there was a talent quest at the Highlander Hotel, Adelaide, which he entered every week and usually won, and which paid $50 or $100, which was a lot of money then, and was much more prize money than most talent quests.
In 1979 Mr Lester said he and his family moved to Wedderburn in Victoria. He said he bought a Miner's Right and spent his time prospecting. He said after a time he also started teaching music at the local school for two hours on a Monday afternoon on a voluntary basis. He said as far as he could recall he did that for about nine months in 1987. Exhibit A4 is an application for a Defence Service Home Loan dated 15 September 1987. In that application Mr Lester said he had been employed as a music teacher for two years. He declared his weekly income as salary $25.00, unemployment benefit $262.50 and family allowance of $30.69.
Mr Lester agreed that while he was at Wedderburn he was a member of the RSL and had a two year term as President of the Wedderburn RSL. He said he also did some tomato picking.
While Mr Lester was living at Wedderburn he was referred to Dr Bomford, a psychiatrist, in connection with his claim to have his anxiety disorder accepted as war-caused. Dr Bomford's report (T45) is dated 30 September 1994. In that report Dr Bomford wrote (p55):
He is the current president of the RSL and he joins a local group in concerts. He teaches music at the high school. He describes himself as a social drinker and a non smoker. He does not abuse drugs but will take extra Diazepam to control an attack.
MENTAL STATE EXAMINATION
He was relaxed and confident in the interview, making occasional eye contact. We had met previously over our cooperative management of his wife's difficult impulsive behaviour and her affective disorder. There were no signs of any anxiety, depression or hesitancy. (emphasis added)
Mr Lester in evidence said that he did not give Dr Bomford a full history because they knew each other socially. But he also said that it would have been impossible for him to gain employment as a musician from 1994 to 1996. He explained (trans. p23):
Impossible to gain gainful employment. I couldn't even get a job on the council. I didn't even get an interview. I was reclusive then, agoraphobic and the town knew all about me, and I couldn't go anywhere to live because I had no money. I couldn't leave there.
You told us that you did the couple of hours with the music at the school? --- Yes.
In 1987. What happened in 1988 and the years thereafter? --- Nothing. I did - I will tell you. You went to the local hotel and if there was a day's casual work in the area, lumping rocks or anything, mowing the lawn, I tried to keep some pride, and if I could - if I was up to it, it was a job that the guy would say, I'll give you 50 bucks to weed my garden or mow lawns or something like that, I would go to that. Itinerant cash in hand type of lifestyle, I lived, and I was the local yokel I suppose, that they went to when they wanted someone to do something they didn't want to do.
Mr Lester said (trans. p24) that he had never been candid about describing his occupation. He said he described himself as a musician or music teacher when he met people at the bowling club rather than say he was a "dole bludger with a mental illness" (trans. p27). He said (trans. p27):
I used to say I am a musician and I teach at the local school, and they would leave it at that, and I felt really proud. And I lived - I wanted to have some pride, you know, and I still do.
Mr Lester said he would have played with a band if he could have, but he would not have been reliable in attending rehearsals and performances. He said that from 1970 to 1996 he was taking Diazepam at doses of 5mg a day up to 50 or 75mg when he had a panic attack. He was also using alcohol for self-medication.
In cross-examination Mr Dubé put to Mr Lester that Dr Koop's notes (Tdocs 2002, pp64-65) contain a number of entries indicating that Mr Lester was drinking less and feeling better. He agreed, though somewhat reluctantly, that at times he did feel better.
Mr Lester agreed with Mr Dubé that during his last couple of years of service, while based at HMAS Penguin, he lived off base and as well as his Naval duties, he also played in a band up to five nights a week. He also agreed that in the six or eight months he lived in Manly after discharge he worked casually doing bread delivery for Buttercup bakeries.
Mr Dubé put to Mr Lester that Dr Kenny (T62) had reported that Mr Lester had told him:
He spent his last year on a shore base. Meanwhile he had a band five to six nights a week for about nine months to a year, drove a bread van and retired to play with the band.
He then split up with his first wife, went to Queensland with his new wife but continued to have panic attacks.
He worked on the Gold Coast, playing in a band to live, travelled around Australia and he is currently on a disability pension. He last worked as a music teacher for the Education Department in Victoria in 1982 for a year, but his Contract was not renewed and he thinks that might have been because of his drinking and his irritability. He hasn't worked effectively since that time, has done a little bit of casual work in music in the past but not recently.
Mr Lester said that Dr Kenny had got that wrong. He had not played in a band on the Gold Coast "to live", but had done so as part of his service musical career, not after his discharge. He denied that he had ever played in a band after discharge although he said that he had frequently entered talent quests.
Mr Dubé asked Mr Lester if he had worked two years as a music teacher. He said that he had only done it once for nine months and then his contract had not been renewed. He could not explain why on (A4), his application for a Defence Service Home Loan he had written "2 YEARS" as the length of his employment by the Country Education Program.
Mr Lester agreed with Mr Dubé that he had gone onto a carer's pension for caring for his wife in 1982. That is what his advocate told the Veterans Review Board ("VRB") (T60 p113). That page of the VRB decision also states:
For the latter part of the 1970's he was an itinerant musician travelling Australia and playing with various bands.
The Tribunal asked Mr Lester to explain why he went from being able to both perform his musician duties in the Navy (although some days he could not turn up and had to be replaced) and play in a band up to five nights a week, to not being able to do anything other than enter talent quests once a week or a fortnight. He said it was his opinion that if his employment was not satisfactory in the Navy, it would not be satisfactory as a civilian musician. He also said he suffered from sinus tachycardia and panic attack. The Tribunal referred to the report of Dr Tonkin (Tdocs 2002 p55) that Mr Lester had told him, in 1978, that he had about 40 attacks of tachycardia over the last five years.
The Tribunal also asked Mr Lester to comment on Dr Koop's Work Ability Report (T55) where he wrote that Mr Lester had been sacked from many jobs. Dr Koop also wrote (T53) that Mr Lester, "Feels he lost his job as a teacher on many occasions because he was suspected of being an alcoholic because of two attacks". Mr Lester replied "Yes, I told him a lot of lies, Dr Koop" (trans. p48). He added "I used a lot of . . . fanciful explanations in the fact that I had lost many jobs . . . ." (trans. p49). Mr Lester said he had lost a job as a teacher once, not on many occasions (trans. p49).
In his evidence, Dr Kenny said that he considered both alcohol intake and panic attacks would have made it very difficult for Mr Lester to attend work regularly and to cope with work. Dr Kenny said that the best way to assess how much work a person can do is by estimating how much work the person has done satisfactorily in the relevant period of time, although he acknowledged that the fact that a person does not work does not necessarily mean he can not work. However he said it was "simply impossible" (trans. p79) to find out from Mr Lester how much he had worked in the relevant time.
Dr Kenny agreed with Mr Dubé that Mr Lester's anxiety condition could have been accentuated about the time of his discharge by the problems he and his wife were having.
In cross-examination Dr Kenny agreed with Mr Trigar that if the evidence given by Mr Lester and his wife was accurate, when they said that his condition had not varied since Mrs Lester had met him in 1973, and that he had not worked except for "itinerant jobs" in that period (trans. p83), then he would accept that Mr Lester was unfit for employment other than sporadic employment over the years.
Dr D'Ortenzio said that although Mr Lester was referred to him by a general practitioner, he had come on the suggestion of his advocate to obtain a report supporting his application to have his anxiety condition accepted as a war-caused disease, under the Veterans' Entitlements Act. Dr D'Ortenzio said that it was not his practice to provide an independent report and accept somebody for treatment, and so he had accepted Mr Lester for treatment, seen him five times and then provided a report as a treating doctor.
Dr D'Ortenzio had been given a history, as had Dr Kenny, of Mr Lester working as a music teacher, but although he had seen Mr Lester five times he did not know when or on what basis. Dr D'Ortenzio said he had understood that Mr Lester had a much improved level of functioning during the periods when he was able to abstain from alcohol. The records of the treating doctor (Tdocs 2002 pp57-82) are partly transcribed in the reasons for the 2002 reviewable decision, paragraph 20. They show that during the years 1990-1993 Mr Lester was taking very little alcohol and was taking less valium (diazepam) and reported "no tachycardia since on betaloc".

Dr D'Ortenzio agreed with Mr Dubé that those notes seemed to show that Mr Lester had reduced his drinking in 1991 and 1992 and was feeling a lot better. Dr D'Ortenzio said that the story he was given was consistent with a significant level of incapacity since discharge, but it was difficult to know how it had varied over the years. Dr D'Ortenzio said that the matters that were put to him were consistent both with severe incapacity for work, and with moderate incapacity for work. He explained (trans. p94):
[T]here are many people that use Valium and alcohol and still manage to work in some occupations. Certainly, there are many musicians that consume worse than that. Teaching may well be difficult.

FINDINGS

Mr Trigar submitted that the overwhelming evidence was that Mr Lester had, at best, performed only sporadic employment since 1972. We accept that that is the tenor of the evidence which was given before us, but we are not satisfied that means either of the decisions under review should be varied. In order to vary either the first or the second decision under review we would need to be satisfied, on the balance of probabilities, that the rating of incapacity as moderate, under s 34 of the Act, immediately following discharge from service, and up until 12 December 1996, was not the correct decision.
The correct approach for the Tribunal to adopt in matters of this nature was explained by the Federal Court in McDonald v Director-General of Social Security (1984) 6 ALD 6 at p11 where Woodward J said:
If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence, whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.

Jenkinson J dealt with the issue at p21 where he said:

There is, however, in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself, for the resolution of which the same principles are applicable by each tribunal. Either tribunal may find itself unpersuaded either that a circumstance exists or that it does not exist. (The same may be said of a past or a future circumstance.) The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or the non-existence of the circumstance which is determinative of the question for decision. In this case the Administrative Appeals Tribunal would determine whether the Social Security Act 1947, upon its proper construction, required that the applicant's pension be cancelled if she were found not to be permanently incapacitated for work, or required that the pension be cancelled unless she were found to be permanently incapacitated for work. In the former case the Tribunal's lack of persuasion that permanent incapacity did not exist would preclude cancellation.

In this matter the issue is whether some assessment different to the assessments of incapacity made by the DFRDBA would be the correct decision. We would need to be satisfied that some different decision was the correct decision before we would set aside or vary the decisions under review.
As to the original classification decision s 30(1) and (2) provide:
Classification in respect of incapacity
30.      (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
. . .
(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.
As to s 30(2), the DFRDBA in respect of paragraphs (a) and (b) recognised Mr Lester's vocational and professional skills as a musician and decided that the kind of civil employment which he might reasonably undertake was employment as a musician. In the November 2001 decision it added employment as a music teacher. There is no challenge to that aspect of the decision.
As to s 30(2)(c) the DFRDBA in the November 2001 decision found the relevant impairment to be "generalised anxiety disorder with panic and substance abuse". That aspect of the decision is not challenged.
The issue for determination is the degree to which that mental impairment diminished the capacity of Mr Lester to undertake civil employment as a musician or music teacher. As Davies J explained in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at p.433:
The width of the range in employment opportunity is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but it may preclude the person from working more than part-time or intermittently. Thus, the determination of a percentage of incapacity is not to be undertaken as if it were a mathematical calculation. Rather it is a value judgment of the extent to which, expressed in percentage terms, and taking into account only the matters set out in s.34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment.

There is no precise formula for determining the degree to which a physical or mental impairment has diminished a person's capacity to engage in employment. Any such determination will almost always be an estimate or approximation. The situation is of course more difficult when the task of determination must be performed retrospectively, as to a period which commenced thirty years ago and as to which there is no contemporaneous medical opinion addressing the relevant issues.

In addition to the difficulties explained in the last paragraph, we found Mr Lester's evidence to be unsatisfactory in a number of respects. Briefly there are unexplained matters, inconsistencies in accounts given by Mr Lester to doctors, to his solicitor, in forms he completed, and to this Tribunal. Finally there is no clear support for his claims in contemporaneous medical records.
As to unexplained matters, the first issue which troubles us is the fact that there was never any explanation given as to why Mr Lester, who was apparently able to perform in a civilian band up to five or six nights a week while still in the Navy in 1972, (T33 and trans. p34), claimed to be more than moderately incapacitated for work as a musician after discharge. We found this issue to be particularly puzzling as, once he was discharged, Mr Lester was removed from the pressure of trying to reconcile the demands of his wife and his Navy career. Further, the discharge was reported to be in accordance with his expressed wishes (T30 and T33).
The fact that Mr Lester sought discharge is confirmed by the letter Mr Lester's then solicitors wrote, no doubt on instructions, in support of Mr Lester's application for a war service home loan on 18 May 1987 (T38). Messrs Campbell Grace and Co referred to the health problems of Mr Lester's first wife including two drug overdoses leading to hospital admission, and the fact that Mr Lester went to the hospital to visit her without permission. They wrote (Tdocs pp46-47):
By this stage he had used all of his compassionate leave entitlement and he was understandably advised that it was necessary to choose between his career in the Navy and his commitment to his wife and family. After many discussions with the Navy Chaplain Mr. Lester took the most responsible decision that he was not able to apply himself to his service to the fullest extent whilst he was experiencing matrimonial problems. He was not prepared to renege on his family responsibilities.
We are instructed that the Navy advised Mr. Lester that the decision was his whether he would remain in the Navy or whether he would elect to be discharged. We are also instructed that his records read that his conduct at time of discharge was very good. When Mr. Lester was discharged he received all of his entitlements including deferred pay and trade certificates. We are instructed that the actual reason for his discharge was that Mr. Lester believed he was unsuitable for his job at that particular time due to his matrimonial problems and resultant family commitments.
The discharge would have allowed Mr Lester to devote himself to his own music career and to his wife's problems, without trying to reconcile those maters to the requirements of the Navy.
Mr Lester did acknowledge that he had career opportunities after discharge. He said (trans. p26):
I was auditioned at Paddington Town Hall and passed it. Two of us did. Colin Cook, who was the manager then. They were a mega band in America, and their drummer was conscripted and they needed a drummer to replace him and they offered me $80,000 to go to America and put down a record called Cosmos Factory, which is to this day one of the biggest selling records of all time, and my wife didn't want me to go, my first wife. And I wasn't well either.
We accept that immediately after discharge Mr Lester had an anxiety condition and was dependent on diazepam. We find that those health problems did cause some incapacity for work, but the evidence does not satisfy us that they caused more than a moderate incapacity for work. Mr Lester clearly still had music vocational skills, qualifications and experience of a very high order as shown by the offer of the job in the Creedence Clearwater Revival Band and the winning of many talent quests. We find that his prescribed mental impairments diminished his capacity to undertake a career in music to a moderate degree. We do not find that because of those impairments Mr Lester did not pursue a career as a musician. We find that his first wife's demands on him, the break up of that marriage, the access dispute about his children and the move to Queensland were all factors which played a part in Mr Lester's failure to pursue an active career as a musician after discharge. Further we are not satisfied that Mr Lester did not play in bands on the Gold Coast in the late 1970's as Dr Kenny recorded. Apart from the evidence as to playing in bands in the late 1970's, there is no evidence that Mr Lester sought to do anything more than frequently enter talent quests. The evidence does not satisfy us that his failure to actively pursue a career as a musician was substantially due to his prescribed impairment, although we accept that the impairment did play a part in the lifestyle Mr Lester adopted after his discharge from service. We find that Mr Lester's mental impairment diminished his capacity to undertake civil employment as a musician to a moderate degree, immediately following his discharge from the Navy.
The next question is whether we are persuaded that at any stage before 12 December 1996 the moderate incapacity for work as a musician or music teacher had changed to a large incapacity for work due to the prescribed impairment. On this issue the inconsistencies between Mr Lester's evidence to the Tribunal, the histories he has given to doctors, and the information he provided in forms in support of his application for a war service home loan, mean that we are not persuaded that the situation changed at any specific date prior to 12 December 1996, when he saw Dr D'Ortenzio. In his report of 23 August 2000, Dr D'Ortenzio wrote that Mr Lester did have a large incapacity for work when he saw him on12 December 1996.
The relevant legislation in considering reclassification is s 34 of the Act. It provides:
34 Reclassification in respect of incapacity
(1)The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.
. . .
(2)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.
. . .
(3)Where the Authority reclassifies a recipient member (other than a member to whom section 37 applies) under this section, the date specified by the Authority as the date from which the reclassification has effect shall not be a date earlier than the date on which the Authority reclassifies the member unless:
(a)the member is reclassified as Class A or, having been classified as Class C, is reclassified as Class B; and
(b)the Authority is satisfied that special circumstances exist that justify an earlier date being so specified.
Mr and Mrs Lester both gave evidence as to the period between 1972 and 1996. They said that Mr Lester did not and could not work as a musician except for talent quests and one teaching job in 1987 of two hours a week, due to his panic attacks and his addiction to diazepam and alcohol.
As explained in the reasons for the 2002 decision of DFRDBA, at paragraphs 18 and 19, Dr Tonkin's report and notes of 12 and 13 January 1978 refer to Mr Lester as a musician and car repairer and describe him as having had 40 attacks of tachycardia over the last five years. Dr Tonkin prescribed metropol to control the attacks and Mr Lester did not return for a follow up appointment.
The general practitioner notes of Drs Jarman, Higgs, Koop and Broom covering the period January 1984 to December 1996, as set out in paragraph 20 of the DFRDBA reasons for decision, do not show very many attendances related to the prescribed conditions. The tachycardia was reported as reduced in April 1989 and the valium was said to have been reduced to one a day in 1990. As set out in paragraph 50 above, there are periods particularly in 1991 and 1992 when addiction problems of alcohol and valium appear to have been well controlled, prior to the lodging of the DVA claim.
Dr Bomford's report of 23 September 1994 (T45) is also not consistent with the prescribed impairments resulting in a large incapacity for work at that time. Although he obtained a history that attacks of tachycardia had undermined Mr Lester's confidence in social and professional situations and prevented him pursuing a profitable career as a musician, he wrote that Mr Lester could "now manage social and professional events when he knows he can be in control of his exits and entrances". He also noted that Mr Lester taught music at the high school and performed in concerts with a local group and was President of the RSL. Dr Bomford saw no signs of anxiety.
Dr Bomford's report states that Mr Lester was performing and could perform work as a musician and music teacher, although he had a moderate degree of incapacity, so that at times he may not have been able to perform.
We do not accept Mr Lester's evidence that he only worked for six to nine months as a teacher in 1987. We note that Dr Bomford, who stated in his report that he knew Mr Lester, having met him previously over the question of management of his wife's disorder, described him as teaching music at the high school in his report of 23 September 1994. Dr Bomford also wrote that Mr Lester was the current President of the RSL and joined a local group in concerts and described himself as a social drinker and as not abusing drugs other than taking extra diazepam to control a panic attack. Dr Bomford did make the point that with treatment the panic attacks had become less frequent (about three weekly) and dissipated in half an hour.
There is further evidence that suggests that Mr Lester had more than one teaching position. Dr Koop, who filled in a report form (T53) in 1996 had a history of Mr Lester losing his job as a teacher on many occasions because he was suspected of being an alcoholic because of the attacks. In his 1987 claim for a War Service Homes loan (A4), as set out above, Mr Lester stated that he had been a teacher for two years. Similarly Dr Cooper in his notes had a history of Mr Lester having taught at seven High Schools (Tdocs 2002 p118).
Because of all these matters we are not satisfied that the full picture of Mr Lester's employment history was put before the Tribunal. We agree with Dr Kenny's evidence that it was impossible to get a full history from Mr Lester. Further, even if the history given to the Tribunal by Mr and Mrs Lester was broadly accurate, the evidence did not explain why a person who was working two jobs, performing both Naval duties and playing in his own band up until discharge, and who was a sufficiently good musician to win many talent quests after discharge, was unable to hold any job as a musician subsequent to his discharge. While we have found that Mr Lester did have a moderate incapacity for civilian employment as a musician or music teacher from the date of discharge, we find that there were also other factors contributing to Mr Lester's lifestyle. We do not find that the evidence establishes that Mr Lester had a large incapacity at any time prior to 12 December 1996. At that time there is a psychiatrist expressing that opinion and we accept his evidence as to Mr Lester's incapacity when he saw him in 1996.
In so far as Dr D'Ortenzio said in his report and in evidence that he was of the opinion that a large incapacity had been present for a long time, we do not find that retrospective diagnosis helpful. It does not provide a commencing date for the large incapacity, other than saying it was there since service, but of course Dr D'Ortenzio did not see Mr Lester between 1972 and 1996. Dr D'Ortenzio did express the opinion that the condition was worse in later years, with problems of intoxication, but he did not date that change.
Another factor which is relevant is that although Mr and Mrs Lester were in receipt of social security benefits during the relevant period, Mr Lester never claimed any invalidity or disability benefits. He claimed benefits as his wife's carer but not on the basis that he himself had any incapacity for work. If he had done so, and those benefits had been granted, the medical reports could have provided evidence as to the date of onset of a large incapacity for employment as a musician or music teacher. The fact that at some time Mr Lester claimed Carer's Pension (A2), would suggest that at that time his need to care for his wife was a factor explaining why he was not in the workforce.

There are always problems in trying to assess degrees of incapacity retrospectively. We have not been persuaded by the evidence that at any particular time prior to 12 December 1996 Mr Lester's classification should be altered from Class B to Class A. We find that Class A was the appropriate classification from 12 December 1996. Thus it is not necessary for us to consider whether there are special circumstances to justify a reclassification being backdated.
We have decided that both decisions should be affirmed.
These are the reasons for the decisions of 28 June 2002 which affirmed both decisions under review.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer,
Mr A Argent, Member and Miss E A Shanahan, Member
Signed:         Grace Carney
  Personal Assistant
Date/s of Hearing  19 and 20 March 2002
Date of Decision  28 June 2002
Counsel for the Applicant        Mr P Trigar
Solicitor for the Applicant         Ryan Carlisle Thomas
Counsel for the Respondent    Nil
Solicitor for the Respondent    Mr B Dubé
Office of the Australian Government Solicitor