Maxwell Delahunty and Commonwealth Superannuation Corporation
[2014] AATA 864
•3 October 2014
[2014] AATA 864
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3070
Re
Maxwell Delahunty
APPLICANT
And
Commonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal Mr A G Melick SC, Deputy President
Date 3 October 2014 Date of written reasons 21 November 2014 Place Sydney The Tribunal sets aside the decision and substitutes a decision that the Applicant’s retirement impairment diminished his capacity to undertake civilian employment by 35 per cent and hence he is to be classified as Class B with effect from 1 September 1973.
..........................[SGD]..............................................
Mr A G Melick SC, Deputy President
CATCHWORDS
DEFENCE – defence force retirements and death benefits – applicant’s retiring impairment at date of discharge – percentage of incapacity in relation to civil employment – decision set aside and substituted
LEGISLATION
Defence Force Retirement and Death Benefits Act 1973 ss 3, 30, 34, 37, 99(2)
CASES
Cox v O’Donnell & Anor (1992) 34 FCR 42
Freeman v Defence Force Retirement Death Benefits Authority (1986) 5 AAR 156
Re Boss v Defence Force Retirement Death Benefits Authority (1977) 20 ALR 663REASONS FOR DECISION
Mr A G Melick SC, Deputy President
X November 2014
The Applicant, Mr Maxwell Delahunty, made an application to this Tribunal for the review of a decision made by the Commonwealth Superannuation Corporation (CSC) on 12 June 2013. The CSC affirmed a prior determination of the Defence Force Retirement and Death Benefits Authority (DFRDBA) dated 7 February 1974, which found that under section 30 of the Defence Force Retirement and Death Benefits Act 1973 (the Act), Mr Delahunty’s incapacity was five per cent and fell within Class C. This decision had effect from 1 September 1973.
In the original 1974 decision, a delegate of the DFRDBA determined that chronic phobic anxiety state was an appropriate description of the Applicant’s impairment at the time of retirement, taking into consideration the relevant kind of civil employment of salesman, marine technical propulsion and engine driver.
The Applicant requested an investigation of retrospective medical discharge pursuant to section 37 of the Act. Mr Delahunty submitted that the medical records indicated that he was suffering from a significant psychiatric condition prior to his discharge. In a decision dated 6 May 2013 the Respondent allowed the Applicant to make a request for reconsideration of the determination dated 7 February 1974, beyond the 30 day time limit allowed under section 99(2) of the Act.
In correspondence dated 3 February 2012, the Applicant requested a reconsideration of the decision dated 7 February 1974, pursuant to section 99 of the DRFDB Act. The Respondent affirmed the determination made on 7 February 1974.
The Applicant seeks review of the Respondent’s decision with this Tribunal.
BACKGROUND
I accept the key facts, as set out by the Applicant. Mr Delahunty was born in 1947 and is now 67 years of age. The Applicant completed Year 10 in 1962 before enlisting in the Australian Defence Force on 8 July 1963. Mr Delahunty was medically discharged on 31 August 1973 and classified under section 30 of the Act as 5 per cent Class C with effect from 1 September 1973. During the Applicant’s service he served as an Engineering Mechanic, and at the time of discharge held the rank of Petty Officer.
The issues as set out by the Applicant were whether the decision dated 7 February 1974 accurately assessed the following:
(a)the kinds of civil employment which a person with the Applicant’s skills, qualification and experience might reasonably undertake;
(b)the degree which the Applicant has accepted the conditions impact his ability to undertake suitable civilian employment; and
(c)whether the Applicant was incapacitated from undertaking suitable remunerative employment due to his psychological condition.
I note that originally, review was also sought in relation to his physical condition, but this was not pressed at hearing.
ISSUES
The Applicant’s date of discharge was 31 August 1973 and my task is to determine the following.
Firstly, what retiring impairment, if any, was suffered by the Applicant as 1 September 1973. When considering this, I note the comments made in Cox v O’Donnell & Anor (1992) 34 FCR 42 at 55 where the court noted:
In determining what was the Applicant’s medical condition at the time of his retirement the chief of staff was not confined to a consideration of material that was before the Final Medical Board. Nor was he confined to such materials as was available at the date of the Applicant’s retirement. His obligation was to consider whatever information was available at the time he made his determination that could throw light on the Applicant’s medical condition at the relevant date.
Secondly, whether the determination has been made pursuant to section 30 of the Act, and the relevant parts which are subsections (1) and (2). Section 30(1) states:
Where a member of the scheme, not being a member of the scheme to whom 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 B Less than 30% C
Section 30(2) notes the following:
In determining, for the purposes of subsection (1) the percentage 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, qualification, 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); and
(d)any other matters, if any, as are prescribed for the purpose of this subsection.
I note there was nothing relevant pursuant to subsection (d) and the Respondent urged upon me to consider carefully the provisions as set out in subsection (c).
Hence, the third matter I have to decide is the unusual task of determining the Applicant’s level of incapacity in percentage terms as at 1 September 1973, and not his current level of incapacity. Pursuant to section 34 of the Act, the Applicant is not entitled to be reclassified to Class A or Class B with respect to his current level of incapacity, as the Tribunal is confined to consider the Applicant’s level of incapacity at the time of his discharge.
In performing my assessment it was agreed by both counsel that the relevant principles are as set out in Re Boss v Defence Force Retirement and Death Benefits Authority (1977) 20 ALR 663 at 666 and 667. In line with that authority I have only taken into account the circumstances present as at 31 August 1973 and in the immediate future, omitting the circumstances foreseeable only in the long term. So what were the Applicant’s circumstances as at 31 August 1973?
EVIDENCE
The Applicant gave oral evidence by way of confirming his statement at T-42, the salient points of which are as follows. In 1963 whilst a 16 year old recruit at HMAS Leeuwin, the Applicant was sexually assaulted in the toilets. He was told by his attackers not to report it, and if he did they would do it to him again. The Applicant said he did not report the assault because “They told me they will get me again.”
In 1965 he went to South Vietnam aboard HMAS Sydney which was, at the relevant time, anchored in Vung Tau Harbour. He was tasked with inspecting the outside machinery, space rounds, and also the plumber block space which was a space deep in the bowels of the ship which supported the propeller shaft. He had to go through all the hatches and close them as watertight security as he passed through. Whilst in that compartment he felt a large explosion at his feet. Mr Delahunty noted they’d been continually warned about enemy divers putting mines on the sides of the ship. He thought he was going to drown in that space. The Applicant said that he defecated and urinated. He later took off his overalls and underpants and cleaned himself up with rags which he later threw out. He said he was ashamed that he reacted in the way he did, but noted that at the time he was just 18 years old.
Mr Delahunty also mentioned scare charges, which are explosive concussive devices thrown from boats being driven around the ship to knock unconscious or kill any enemy divers. He said that after the scare charge, within about two days, he started to get nightmares and flashbacks about the sexual assault and got to the stage where he could smell the faeces in his mouth and smell the urine. Mr Delahunty said “It was so vivid I felt as though I was back there again.” He also described nightmares about the scare charges, he said “I relive it exactly as it was.”
The Applicant went to South Vietnam on three further occasions, on HMAS Stuart in May/June 1967, then again in January/February 1968, and then on Vendetta in October to November 1970. He said that his nightmares continued after discharge on a regular basis, although it could go for several months without happening. They would reappear whenever he was in a stressful situation. He gave evidence about doing a mechanics course at Balmoral and not being able to handle the pressure because of the nightmares. He held himself always in low esteem because of the sexual assault because he always thought in some way it was his fault. And he was also continually ashamed about his reaction to what happened in the space deep down in HMAS Sydney.
Mr Delahunty gave evidence about the last two years of his naval service, not being able to cope, and starting to have problems with anxiety which was reported in the service documents. He said in his last job, “I kept wanting to go the sickbay rather than go to work. And all I wanted to do was sleep and drink.” He said a couple of years prior to 1973 the nightmares became a constant thing and he was drinking anything he could get his hands on, including cheap wine, and alcohol in thermos flasks driving to and from work, and in the petty officer’s mess.
After his discharge he got a job at the Australian Paper Mills at Nowra, which only lasted a few months before he moved to Gladstone. He said one of the reasons he moved was because he was working with other naval personnel – or ex-naval personnel – as well as there being many naval personnel around the vicinity of Nowra and his home. He said whenever he got stressed the flashbacks and nightmares would start returning with greater intensity, and he would drink more heavily until he passed out. He also said when he changed jobs and started afresh he had higher concentration levels and the nightmares would diminish until the job became routine, and they would start over again. He provided this as an explanation as to why he continually changed jobs.
I note that some of the other jobs he appears to have had where at Queensland Aluminium working at the smelter with machinery in late 1973 to 1974 then at a copper smelter at Tennant Creek as a shift supervisor for approximately 15 people to 1975, then at the Northern Territory Police Force in Tennant Creek, Anthony Lagoon, Papunya, Port Keats, Mataranka, and Katherine from approximately March 1975 until 1981/2. Mr Delahunty then worked at Carlton United Breweries in Cairns looking after refrigeration for an extended period of time until about 1992 before he got a job at Westpac Plaza in Sydney as a security agent in 1993 and then worked with New South Wales Lottery in a security role from 1993 to 1998 and then a corporation retail property manager for TAB, refitting outlets, for four years from 1998 to 2002.
His evidence was not challenged by the Respondent, although he was questioned about statements made in 1973 which I will refer to later. His evidence was supported by his wife, Jan Delahunty, whose provided a written statement (at T-43), and gave oral evidence at the hearing. As they only met in 1970, Mrs Delahunty could only refer to the Applicant’s behaviour and nightmares after returning from South Vietnam on HMAS Vendetta in 1970. Even though his evidence is not challenged, there is sufficient support in his naval records In a Defence Support Group minute dated November 2011 (at T-7) which formed part of a brief prepared for the Naval People Career Management Agency it states at [13]:
JHC [Joint Health Command]…advises there is no doubt that Mr Delahunty had significant ongoing problems with anxiety requiring psychiatric /psychological intervention and medication which was first documented in February 1972. He was first “surveyed” and medically downgraded with a recommended category of Y (temporary unfit for sea service and for service ashore as specified) in December 1972. The special reviews contained in his medical file indicated no improvement in 1973 but some deterioration. Therefore he was recommended a classification of PUNS, which is permanently unfit for naval service, and separation.
At [14] the minute states:
In conclusion there is sufficient medical evidence in the Navy Medical File of Mr Delahunty to accept the claim that he was suffering from significant incapacity from a mental health condition (anxiety) at the time of his separation from the Navy, and that such incapacity could have led to his retirement on the basis of invalidity.
The report of a medical board survey dated 27 July 1972 (T9-36) refers to the Applicant’s disability as chronic phobic anxiety state and assessed this disability as constitutional:
Due to naval service? No.
Aggravated by naval service? Yes.
Present percentage of incapacity: Naval 35 per cent. Civil 30 per cent.
The Respondent pointed out that there’s no evidence to confirm that those assessments of incapacity were made in accordance with section 30(2) of the Act, which in fact had been passed some six months beforehand. However, I consider it is likely that section 30(2), or something similar, was in the mind of the medical board when making the assessment. I do note the member’s statement “I’m still nervous, but while I take my pills I am okay”.
The Respondent also pointed out that this would seem to indicate that perhaps the Applicant was not as impaired as he now suggests. However I note that the statement was made at the same time, or was taken into account, one would assume, at the same time the assessment of Mr Delahunty’s 30 per cent civil impairment was noted. I also note, of course, that being okay was conditional upon him taking tablets.
There is also before me a report of Dr Richardson (a Government Medical Officer) (T20-185), however there are several factors that are unknown regarding Dr Richardson and his examination. Firstly we don’t know if he was just a general medical officer or a psychiatrist. We don’t know if he had the Applicant’s records with him, bearing in mind that there are other documents indicating the appointment was first made for the Applicant to see the Government Medical Officer at Nowra, the Navy not having been aware that he had moved to Gladstone. In any event, Dr Richardson’s assessment reads, among other things:
The claimant possesses normal use of all limbs, no defect in muscular function or skeletal system. Condition of heart, circulation, lungs, abdominal organs, nervous system, scars, nose and throat, and skin, all NAD. The claimant’s mental condition: Normal. In mid-1972 nervous condition first noted. Took form of shakiness, hyper-ventilation. Was on specialist treatment for about one year, since then has been normal. Now feels and looks completely well. Very little likelihood of progression of invaliding disability.
I make the following observations about Dr Richardson’s report; it can be gathered that some medical records were presented to be examined by Dr Richardson, however the medical records are inconsistent with his comment “Was on specialist treatment for about one year and since then has been normal”. This is because the medical assessment dated July 1972 (referred to above at [25] –refers to the Applicant as having a phobic anxiety state.
The comment, “Now looks and feels completely well” has to be read in conjunction with the fact that Mr Delahunty had just changed jobs, he’d left Nowra, and started a new job. The Applicant has given evidence about how he felt when starting a new enterprise, how his deteriorating mental condition would improve, and the nightmares and flashbacks would diminish. This, of course, is an assessment made later than 31 August 1973 and that is the date at which I have to make my assessment.
APPLICANT’S RETIRING IMPAIRMENT
In light of the current medical knowledge, the appropriate description for the Applicant’s phobic anxiety state may now be post-traumatic stress disorder (PTSD) with anxiety and depressive disorders. In a report dated 18 April 2013, Dr White, the Applicant’s treating psychiatrist, (Exhibit 1)indicates that he first saw the Applicant on 20 January 2011 and he provides a history.. In a subsequent report dated 30 June 2014 (Exhibit 2), Dr White notes that Mr Delahunty saw a psychiatrist, Dr Rowland, whose report appears at T-54, and notes that she made a diagnosis of PTSD, with secondary depression and alcohol abuse related to the sexual assault. The description of Dr Rowland’s assessment is consistent with a standard specialist approach and treatment. Dr White then goes on to relay similar histories given to him, and a history similar to the evidence given by the Applicant.
I also note Dr White’s oral evidence, that the Applicant told him, in detail, about the sexual assault when he was aged 16 and the incident aboard HMAS Sydney when he was aged 18. Dr White opines that Mr Delahunty was permanently unfit for any work due to his chronic PTSD, anxiety disorder, and depressive disorder. He says his concentration is poor, he is anxious dealing with the public, and has difficulty coping with any stress. He also gave the opinion that the Applicant is currently unfit for work, but, as I indicated earlier, that is not a relevant consideration.
The Respondent produced a report from Dr Dunn, psychiatrist, dated 15 July 2014 (Exhibit 3). Dr Dunn reviewed the Applicant’s matter on the papers but was not called to give evidence. He opined the Applicant was not suffering from PTSD as at the date of discharge for, inter alia, the following reasons:
The patient does not, in any of the reports, describe the traumatic events that he experienced in terms of not only alleged sexual assault, but also his sense of terror when he heard the scare charges go off in Vung Tau Harbour.
This matter has been dealt with by the oral evidence of Dr White and also I note that Dr Rowland did refer to the sexual assault.
Dr Dunn continued as follows:
Despite the patient subsequently describing to Dr White symptoms which suggest that the patient continued to be haunted by intrusive memories and emotions associated with those traumatic experiences, the naval records do not record any phenomena that would suggest that the patient was so affected in 1973.
I note that the Applicant indicated that he was ashamed about what had happened to him and his reaction to the scare charges, and that is why the matters were not reported. However it was obvious that in 1973 he was suffering something quite severe because, as noted by Dr White, it is unusual for matters such as anxiety and phobias to be recorded back that far and therefore his evidence suggests it would have to have been reasonably florid to be so detected and reported upon. He said that usually people will be just declared as unsuitable for naval service, rather than having a psychiatric or mental condition.
The next matter referred to by Dr Dunn is when he says:
Indeed the symptoms recorded by the psychologist, and elsewhere in the documents, are strongly suggestive of the patient having an anxiety disorder in the form of panic disorder with agoraphobia. I also suspect the patient may have had what these days is called a specific learning difficultly (dyslexia would be an example) but that was not diagnosed at the time.
He therefore concludes:
It is my impression, therefore, that the content of the medical reports …presented to me do not, in fact, indicate the patient “was suffering from post-traumatic stress disorder as at his date of discharge from the Australian Defence Force on 31 August 1973”.
I note that Dr Dunn was not a treating doctor, he dealt with the matter on the papers, and he was not cross-examined. He did not have the advantages that Dr White has had in being the Applicant’s treating doctor and having had several dealings and interactions with the Applicant. Dr Dunn did not interview the Applicant. I consider that Dr White was an impressive witness. I consider that his reports and diagnosis were consistent with the matters I have already referred to in the T-Documents and I am satisfied that at the time of the Applicant’s discharge that he was suffering from PTSD, an anxiety disorder and a depressive disorder. I also consider that he probably had a co-morbid alcohol abuse disorder.
LEVEL OF INCAPACITY
I now turn to the level of incapacity. The Respondent contends that the Applicant’s work record demonstrates his impairment is minimal, and I have to be careful not to put too much weight on material and opinions elicited approximately 40 years after the relevant date. As mentioned before, there is a consistency of the relevant matters in records since 1972 and his wife’s evidence since 1970 supports both the Applicant’s evidence and Dr White’s diagnosis. Dr White also indicated that people suffering from PTSD are often able to work and perform at a lower level of efficiency than they would be capable of if not so afflicted.
I have considered the Respondent’s submissions about Mr Delahunty’s work record, but I note he never seems to have attained any great level of responsibility or remuneration, apart from a promotion in the Northern Territory Police Force from Constable to Senior Constable.
The Applicant gave evidence of the stress and increased levels of anxieties and nightmares every time he commenced undertaking training to improve his job efficiency. He also gave evidence of his nightmares diminishing when he took on a new job because he was involved in learning something new. However, once he settled into a routine the anxiety and nightmares got worse. As I understood the evidence of Dr White, this behaviour is consistent with his diagnosis.
Contrary to the Respondent’s submissions, Dr White contended that the Applicant’s impairment was significant, in fact Class A. He referred to Freeman v Defence Force Retirements and Death Benefits Authority (1986) 5 AAR 156, in particular to the passages from 163 through to 164. He referred to the first complete paragraph at 164 which reads as follows:
A case of that latter kind was Re X v Defence Force Retirement Death Benefits Authority 1983 ALD 37. Their exit obtained high rank at a branch of the armed services. He had a complete mental breakdown and was retired. At the date of retirement his disabilities made him virtually unemployable and is classified Class A for pension purposes. However, by concealing the nature of his illness and demonstrating remarkable fortitude he obtained well-paid, responsible employment. It was apparent that it was only by concealment and by adopting an attitude towards the limitations imposed by his disabilities much beyond that which to expect of an average person that X had obtained his job. As a result of the employment, X was re-classified as Class B for pension purposes. Upon review it was held inter alia that the test for capacity of civilian employment should not take into account the capacity of a pensioner to obtain employment by concealing his condition. He is re-classified as Class A.
I take that into account, but also take into account the comments in Re Boss, and in particular I note the following comment at 666:
When he suffered an incapacity, some of these opportunities are denied to him. He suffers an incapacity in relation to civil employment. Comparison between the lost opportunities and a whole range of individuals’ employment opportunities provides the measure of his percentage incapacity.
I take the view that the Applicant obviously suffered a significant loss of capacity, but I don’t think it goes anywhere near the level contended by Mr White, who submitted to me that because of the medical knowledge of 1973 being limited, it may well have caused an underestimation of the effect of the Applicant’s anxiety phobia, adding that the 30 per cent impairment in the Medical Board Report was far too conservative.
Obviously this determination is one that’s difficult to make with any precision, but I take guidance from the contemporaneous determination by the Medical Board surveys of 27 July 1973, the reports of Dr White and Dr Rowland. From these, the evidence of the Applicant and his wife, and the other materials, I consider the Applicant’s impairment to have been at least 30 per cent, and allowing a small extra component for the matters referred to in Freeman (and the discussion therein of X’s case), bearing in mind the distinction I’ve already drawn, I assess the impairment at 35 per cent.
DECISION
For the reasons set out above, the Respondent’s decision of 12 June 2013 is set aside, and I determine that the Applicant’s retirement impairment diminished his capacity to undertake civilian employment by 35 per cent and hence he is to be classified as Class B with effect from 1 September 1973.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr A G Melick SC, Deputy President .........................[sgd]...............................................
Associate
Dated 21 November 2014
Dates of hearing 1 and 2 October 2014 Counsel for the Applicant Mr E White Solicitors for the Applicant KCI Lawyers Solicitors for the Respondent Mr H McNair, Norton Rose Fulbright
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