QX06/13 and Defence Forces Retirement and Death Benefits Authority
[2006] AATA 1091
•19 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1091
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/40
GENERAL ADMINISTRATIVE DIVISION ) Re QX06/13 Applicant
And
DEFENCE FORCES RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Dr KS Levy, Senior Member Date19 December 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and determines that –
(i) The degree of incapacity at the time of discharge for this applicant was 30%.
(ii) The applicant is to be classified as Class B with effect from 6 January 1970, for the purposes of section 51 of the Defence Forces Retirement Benefits Act 1948 (Cth).
..................[Sgd]............................
Senior Member
DEFENCE FORCES RETIREMENT BENEFITS - classification in respect of incapacity – consideration of depressive disorder resulting in incapacity of greater than 10% at the time of discharge – applicant had an incapacity of 30% - decision set aside
Defence Forces Retirement Benefits Act 1948 (Cth), ss 51, 53
Defence Force Retirement and Death Benefits Act 1973 (Cth), ss 30, 31
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
Buck and Defence Force Retirement and Death Benefits Authority (S92/299, 15 October 1993)
Re Whiteford and the Commissioner for Superannuation (1987) 6 AAR 70; (1987) 14 ALD 321
Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424; (1987) 12 ALD 720REASONS FOR DECISION
19 December 2006 Dr KS Levy, Senior Member 1. At the commencement of this hearing, the applicant’s Counsel sought an order of the Tribunal to have the name of the applicant suppressed in view of the "intensely personal" nature of much of the evidence and out of concern that the applicant’s children may also be affected. The respondent had no objection to this application, which he thought was "reasonable". The Tribunal is satisfied that much of the evidence submitted would be extremely sensitive to any applicant and in the circumstances, the Tribunal made an order under section 35(2)(aa) of the Administrative Appeals Tribunal Act 1975, prohibiting the publication of the name of the applicant where it appears in the decision and in any other reference, which is publicly ascertainable, including on the Internet. The applicant in this case is hereinafter referred to merely as, “the applicant”.
2. On 2 December 2002, the Director-General of Personnel - Army advised that there were grounds on which it could be accepted that the applicant could have been retired from the Army on the grounds of invalidity. In reaching a decision, the Director-General was cognisant of the reports of Dr Lawford, dated 13 April 2000 and 11 April 2002, which concluded that the applicant was suffering from a recurrent major depressive disorder and not a personality disorder, and that he should be retired on medical grounds. Dr Lawford further opined that at the time of discharge, there were grounds whereby the applicant could have been discharged on the grounds of invalidity.
3. This decision of the Director-General was reached upon considering and accepting an opinion of Dr Miller, who concluded that at the time of his discharge, the applicant was suffering from recurrent major depressive disorder. There was also a report by Dr Robert Athey of 26 December 2002, which referred to a long history of the applicant having "recurrent major depressive disorder with high level of anxiety, and even some agoraphobic symptoms". As a result, the Director-General of Personnel - Army, concluded that that condition could have warranted the applicant being discharged from the Army on medical grounds.
4. The Defence Force Retirement and Death Benefit Authority determined on 23 May 2003 in relation to this applicant that specialist psychiatric medical opinion now appeared quite clear that, "…at the time of discharge, [the applicant] was suffering from what was probably a recurrent major depressive disorder, and that such condition most likely would have been the cause of his less than perfect service record". As a result, the Authority determined on 9 September 2003, under section 51 (6) of the Defence Forces Retirement Benefits Act 1948 (Commonwealth) ("the Act"), that the applicant shall be treated as having been retired on the ground of invalidity. A delegate of the Authority also classified the applicant as 10% Class C at the time of discharge.
5. That decision was reconsidered following an application by the applicant and the determination set out below was made on 15 October 2004 by a delegate of the Authority:
a.the relevant kinds of civil employment which a person with the applicant’s vocational, trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) were security officer and labourer;
b.“recurrent major depressive disorder” constituted the applicant's retiring impairment; and
c.affirmed the delegate’s decision to classify the applicant as 10% Class C at the time of discharge, that is, from 6 January 1970.
6. It is the decision of 15 October 2004 which this Tribunal is now asked to review.
ISSUES
7. The issue before this Tribunal is whether a classification of the applicant as 10% Class C under section 51 of the Act with effect from 6 January 1970, is the correct or preferable decision?
LEGISLATION
8. The following provisions of the Defence Forces Retirement Benefits Act 1948 are relevant:
“51 Classification in respect of incapacity
(1) Subject to subsection (3), where:
(a)a member who is a contributor has been retired before attaining the retiring age for the rank held by him;
…
on the ground of invalidity or of physical or mental incapacity to perform his duties (not, in the opinion of the Authority, due to wilful action on his part for the purpose of obtaining pension or other benefit), he is entitled to benefit in accordance with sections 52, 52A and 53, but, subject to section 60, is not otherwise entitled to benefit under this Act.
(2) Where a person (not being a person to whom section 52A applies) is, or is about to become, entitled to benefit by virtue of subsection (1), the Authority shall determine the percentage of total incapacity of the person in relation to civil employment and shall classify the person according to the percentage of incapacity as follows:
Percentage of Incapacity Class
60 or over A 30 or over but less than 60 B
Less than 30 C
53 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 pensioner classified under section 51 is such that the classification of the pensioner should be altered, reclassify him in the appropriate classification set out in subsection 51(2) according to the percentage of his incapacity in relation to civil employment.
(1AA) If, at a time when the Authority is reviewing, but has not yet determined, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a pensioner, the pensioner dies:
(a)the Authority must determine what was, immediately before the pensioner’s death, his or her percentage of incapacity in relation to civil employment; and
(b)where the Authority is satisfied, having regard to that percentage of incapacity, that, if the pensioner had not died, the pensioner would be reclassified and given a classification higher than that of the pensioner at the time of his or her death, the Authority must reclassify the pensioner under subsection (1) according to that percentage of incapacity, as if the pensioner had not died.
(1A) In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a pensioner; or
(a) the vocational, trade and professional skills, qualifications and experience of the pensioner;
(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c) the degree to which any physical or mental impairment of the pensioner, being a prescribed physical or mental impairment, has or had diminished the capacity of the pensioner 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.
(1B) In subsection (1A), prescribed physical or mental impairment, in relation to a pensioner or a deceased pensioner, means:
(a) a physical or mental impairment of the pensioner that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the pensioner was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b) any other physical or mental impairment of the pensioner causally connected with a physical or mental impairment referred to in paragraph (a).
(2) Where a person is reclassified under this section, the Authority shall specify the date from which the reclassification has effect and, on and after that date, the person shall, for the purposes of section 52, be deemed to be classified accordingly.”
9. The following provisions of the Defence Force Retirement and Death Benefits Act 1973 (‘the 1973 Act”) are also relevant:
“30 Classification in respect of incapacity
(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 B
60%
Less than 30% C
(1A) Where:
(a)a member of the scheme (other than a member to whom section 36 applies) who is entitled to invalidity benefit dies; and
(b)at the time of his or her death, the Authority has not made a determination in respect of the member under subsection (1);
the Authority must:
(c)determine what was, immediately before the member’s death, his or her percentage of incapacity in relation to civil employment; and
(d)classify the member under subsection (1) according to that percentage of incapacity, as if the member had not died.
(1B) Where a deceased member of the scheme is classified under this section, the classification is taken to have had effect at all times on and after his or her retirement.
(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.
(3) Where the invalidity pay of a person is cancelled under subsection 62(1), any classification of the person under subsection (1) ceases to have effect.
Table of Provisions
31 Class A and Class B invalidity pay
(1) A member of the scheme who is entitled to invalidity benefit and is classified as Class A or Class B under section 30 (whether on his retirement or by reason of his having been reclassified under subsection 34(1)) is entitled to invalidity pay at the rate applicable to him in accordance with this section.
(2) Subject to subsections (3) and (4), the rate at which invalidity pay is payable to a member of the scheme under this section is such amount per annum as is equal to, in the case of a recipient member classified as Class A under section 30, 76.5%, and, in the case of a recipient member classified as Class B, 38.25%, of the annual rate of pay applicable to him immediately before his retirement.”
10. Part XI of the 1973 Act provides that the Authority’s decisions may be reviewed by itself (see Section 99 (2)), or by this Tribunal (Section 99 (6)).
EVIDENCE
11. The Tribunal received evidence from the applicant (in person) and from Dr Lawford and Dr Reddan (by telephone). The Tribunal also admitted documentary evidence, as follows:
·Exhibit 1 Report of Dr Orford dated 9 August 1990
·Exhibit 2 The T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
·Exhibit 3 Statement of the applicant, dated 9 March 2005
·Exhibit 4 Statement of the applicant dated 16 March 2005
·Exhibit 5 Statement of the applicant dated 19 October 2005
·Exhibit 6 Report of Dr Lawford dated 24 April 2006
·Exhibit 7 Curriculum Vitae of Dr Lawford
·Exhibit 8 Numerous reports submitted by the Australian Government Solicitor under cover of the letter dated 12 July 2005
·Exhibit 9 Report of Dr Jill Reddan dated 28 July 2005.
The Applicant
12. The applicant had an unsettled childhood. When he was 4 years of age, his father died of a carcinoma. His mother became depressed and was hospitalised.
13. The applicant and his sister were subsequently placed in a State run orphanage. His sister was adopted out after two years and he remained in the orphanage. For his remaining time there, he ran away on several occassions and was punished in a number of ways, “..such as being locked up, tied to a table, not being allowed to eat with other children and beaten" (See report of Dr Lawford, dated 25 November 2002). He also provided oral evidence that after his sister was adopted out, he still had some of her clothes with him and he used to cuddle them.
14. At the age of six, he was again reunited with his mother, who subsequently married an alcoholic. The applicant’s stepfather, physically assaulted the applicant's mother and himself. After a period of time, he was placed back in the orphanage. He did poorly at school there. He developed depressive symptoms following his mistreatment and continued to have recurrent episodes of depression from that time onwards.
15. The applicant was subsequently adopted by a couple with no children, but it was not a comfortable relationship. They paid for the applicant to be sent to a boarding school in Charters Towers, where he stayed until he completed grade 10 at the age of 16 years. While scholastically he was unsuccessful throughout his school life, he enjoyed sport there and in particular, he enjoyed being at boarding school. He stated that he was not ostracised by teachers and when such opportunities arose, he preferred to stay there rather than go home to his adoptive parents.
16. On leaving school, he first had a job in Weipa as a plant operator, and also loaded trucks and machinery. He then went back to Cairns and obtained a job as a tiler. At this time he was still living at home with his adoptive parents but he found this stressful.
17. The applicant enlisted in the Australian Regular Army on 10 July 1967. He was then 17 years of age. He completed recruit training and Corps training at Ingleburn. He enjoyed the social life and was never in trouble with his supervisors at that stage. He was still 17 years of age whilst undertaking that training, and when he turned 18, he was posted to Malaysia with an infantry battalion of the Royal Australian Regiment. This was the first time he was posted to a position in a rifle platoon, previously having been in the Demonstration Platoon. He went to Malaysia, but found that while he had previously fitted in with others in the Army, he then found himself feeling awkward living with other soldiers. He became depressed and wanted to wear women's clothes. He then could not function as a soldier. In his previous service in the Army, and while in Australia, he had never felt this inclination. He recalled cuddling his sister's clothing in the orphanage as a young child after she was adopted out, but this feeling had never arisen again until he was serving in the Army in Malaysia.
18. The applicant returned to Australia from Malaysia in May 1969. He went AWOL after he returned and stated that it was not planned. It just "happened quickly". He had been posted to Enoggera in Brisbane but when he went AWOL, he went to Sydney. He could not recall how he got there, but said that he had tried to look for a job. He stated his emotional state at the time was one of confusion and guilt and thought that the impulse to go AWOL was driven by the impulses he was having at that time of cross-dressing. He said in evidence that he felt like half a man.
19. He returned to the Army voluntarily and he did try to get medical assistance for his confused mental state. On the first occasion, he went to Ingleburn and a doctor had him hospitalised. However, upon assessment, he was told that there was nothing wrong with him. On the second occasion, he was referred to Concorde Private Hospital for psychiatric assessment after he tried to commit suicide. He believed he was to go to hospital, but instead, he was sent back to the Military Correctional Establishment (that is, the military prison). He did not recall being interviewed by a psychiatrist but was interviewed by a medical officer and Valium was prescribed for him. In his examination in chief, he noted that there had been one other suicide attempt.
20. The applicant said the lowest part of his Army service was at the time of discharge. He was confused and had no one to turn to and could not discuss his cross dressing with anybody else. If he had told people he was depressed, he thought it would have meant nothing to most people in 1969. He stated that his cross dressing always caused him great stress, however, it was also a tranquilliser, similar to when he was in the orphanage.
21. When he left the Army, he could not recall much of what happened. He recalled going from Ingleburn to a town in North Queensland to see his adoptive parents, with whom he had had no contact for almost three years since he had been in the Army. He had written a number of times to them, but he received no reply. However, he returned there as it was the only place he could go.
22. On his journey from Ingleburn to North Queensland, he hitchhiked and slept on the street and scrounged for food. He went for about six months without having a haircut or shower. He did not look for a job in that period because he said he did not think about it. His emotional state was fragile, and when he finally reached his adoptive parents in Cairns, the Padre had already been there and told them that the applicant had been discharged from the Army for going AWOL. They told him they didn't want him there. He then hitchhiked around Australia with no real plans and just kept moving, making decisions on the spur of the moment. He could not explain why he went in any particular direction or why he moved on at any particular time.
23. He did get a job about two months after seeing his parents. This job was driving a bulldozer and lasted for about four weeks. He kept moving, having a number of other jobs, including that of a kitchen hand, labourer, stockman, a delivery driver, and a security guard. None of these jobs lasted more than two to three months and sometimes for much shorter periods. The applicant stated that when he left a job, he generally left the area. In hindsight, he acknowledged they were bad decisions as he was always happy with the jobs he was doing. He never applied for unemployment benefits during any period in between jobs as he does not recall being aware of the existence of that facility.
24. In 1972, he returned to another town in North Queensland. Whilst there, he took an overdose of tablets and was taken to hospital for 10 days. He discussed with one of the doctors at the hospital, his confusion about his gender and was advised to take a course of female hormone tablets. He was then given the name of a doctor in Brisbane who could do a sex change for him. He then went to Brisbane, but very shortly afterwards met the woman who was to become his wife. At this stage, the applicant broke down and wept uncontrollably in the witness box and said that was the first time in his life that anyone had ever had any feelings for him. He said his life had changed completely for the last 35 years since his marriage.
25. After meeting his wife to be, he changed his life in terms of personal hygiene and he sought a job (even though he had many jobs and some of short duration). The longest job he had was driving passenger buses. He worked for the same employer driving buses for three periods, each of about five years. At the end of each of those periods, he resigned, usually because he was at a stage where he was not coping. He subsequently re-applied and again became a bus driver.
26. In 1988, he saw Dr Orford, Psychiatrist, to try to understand why he could not stay in a job for long periods of time. This was approximately 20 years after he had left the Army. However, he indicated that he also drank very heavily until about 2000, when he attended the Forde Commission of Inquiry into child abuse. He explained, he stopped drinking overnight about that time, which was also when his daughter had a car accident. He then focused almost exclusively on his daughter, rather than on himself and did not see Dr Orford again at that time. However, he has been seeing Dr Orford over recent years.
27. Under cross examination by Mr Dillon, the applicant admitted he had been charged a number of times in the Army before he went to Malaysia, although he did not feel this was related to his depression.
28. He was questioned about a previous suicide attempt, but the applicant stated that this was not related to a break-up with his girlfriend. It was about his own psychological state and a preoccupation to dress as a woman. He recalled being in custody of the military police where they said the Army would "throw the book at him", so he escaped again. He reiterated that he had not wanted to wear women's clothing before he went to Malaysia and he was anxious about having this propensity discovered by the Army, as he played rugby for the Battalion and it would have been very difficult for him if others found out about his cross-dressing.
29. The applicant told counsel for the respondent that after he was married, he tried to go back to see his adoptive parents. He and his wife visited them in North Queensland on one occasion, but they would not invite them inside, even with a crying baby. He stated that his adoptive parents have now died and no assets were ever left to him. After his marriage he had greater stability. In particular, bus driving was the most stable job he had in his lifetime, and while it was at times stressful, he never had any "sickies", and had a number of commendations for his service.
Medical Evidence
30. Documentary evidence presented to the Tribunal showed that on 31 December 1969, an Army psychiatric assessment was undertaken on the applicant. A report by Dr McGarvan diagnosed the applicant with a personality disorder. Also, a Dr Grady noted a long history of transvestitism, a homosexual encounter and two suicide attempts around that time.
31. Dr Bowman reported on 16 March 2000 that he considered the applicant's depression originated from his traumatic childhood, particularly during his period at the orphanage. Dr Bowman also considered that the applicant was severely incapacitated and suffered poor concentration and memory, lack of energy, low motivation and was socially withdrawn. He also became agitated in crowded places. He considered the applicant’s long term prognosis was good. Dr Benson, a general practitioner reported on 26 April 2000, the applicant had a long history of major depression related to post-traumatic stress disorder (PTSD). Dr Benson stated that the applicant’s PTSD was a lifelong condition and emanated from childhood abuse. He was of the view that the applicant was medically unfit to work permanently.
·Dr Lawford
32. This witness is Bruce Robert Lawford, Psychiatrist. He holds the qualifications of Bachelor of Medicine and Bachelor of Surgery from Monash University and is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and a Fellow of the Australian Chapter of Addiction Medicine and the College of Physicians. He holds appointments as visiting medical officer at the Royal Brisbane and Women's Hospital, and in addition, he is an Adjunct Associate Professor at the QUT School of Applied Sciences. He is also a research associate at the University of California at Los Angeles, California, USA.
33. Dr Lawford has provided a number of reports. On 13th April 2000, he concluded that the applicant was suffering from a recurrent major depressive disorder and observed that he had been on antidepressants to 20 years. He recommended that the applicant be retired on medical grounds. On 11 April 2002, Dr Lawford again opined that the applicant had a history of recurrent depressive mood disorder and considered that the diagnosis was depression and not a personality disorder, as he otherwise would not have had periods in the past of good behaviour. On 28 November 2003, he also noted that it was more than likely that the applicant was suffering from a depressive disorder at the time he was admitted to Concorde and Ingleburn Hospitals for psychiatric assessments during his military service. He thought that failure of the Army to treat him prior to discharge probably led to him suffering a prolonged period of depression after he left the Army. Dr Lawford stated that the depressive illness lasted 3 years after discharge and that at the time of discharge, his capacity for work was nil.
34. Dr Lawford provided a further report on 20 February 2004 and referred to a copy of the applicant's statement (T64). He stated that the applicant had a condition of depression, and that this was a major factor in him being unable to secure employment, care for himself and look after his well-being. He noted that upon discharge from the Army, the applicant had some irregular employment after an initial period of six months, although he continued "… to live a very itinerant lifestyle, being unable to settle into regular employment or make legal arrangements regarding relationships or accommodation. His capacity to work at that time was clearly greater than 60% (T70)."
·Dr Reddan
35. Dr Reddan, consultant psychiatrist, produced a report dated 28 July 2005 in relation to this applicant. She did not consider that the appropriate diagnosis of his condition was "recurrent major depressive disorder" at the time of his discharge from the Army. Instead, she regarded the applicant’s sexual interests and behaviour as being more correctly described as "Paraphilias" with anxiety, depression, substance abuse and some interpersonal problems. These were co-morbid with the other conditions which she diagnosed, however, she did not think that his symptoms adequately reflected a post-traumatic stress disorder - although she noted the applicant had experienced abandonment, loss and trauma which affected his personality and educational development.
36. Dr Reddan's conclusion was that the applicant suffered major depression with melancholia, but that this diagnosis was only relevant from about late 1999 or early 2000. As a result, she determined that from the applicant's history, "… the primary reason he was going AWOL was because of his paraphilia and to a lesser extent, his difficulties in adjustment…. [The applicant’s] paraphilic interests caused him significant distress and anxiety, but the available evidence does not support the suggestion that at the time of his discharge… [he] was suffering from a Major Depressive Disorder. In summary, the most appropriate description of… retirement impairment would be that of a Parahilia, the most significant of which was Transvestic Fetishism, in the setting of a young man with a rather troubled personality.” (Covering letter of 12 September 2005 with Dr Reddan’s report).
37. Dr Reddan stated in her examination in chief, that it may be difficult to tell the difference between mild levels of disorders, such as between a mild adjustment disorder and a mild depressive disorder. But once it starts to become more intense and becomes a moderate to severe condition, it becomes easier to separate the different conditions.
38. For a depressive disorder to result in a total incapacity for work, this would depend on the nature of the work. Dr Reddan explained that this meant the degree to which the work required attention and concentration. With respect to labouring jobs, she thought that a person with a major depressive disorder could still work as a labourer if the disorder was at a mild to moderate level, although she emphasised that the difficulty then is that motivation is reduced and the ability to get oneself to work regularly is also a reflection of the impairment. But where the occupation requires a greater degree of cognitive effort, then a moderate level of a depressive disorder could seriously impact on the ability to work. To be totally impaired, and to be unable to work at all, Dr Reddan stated that it has to be in the moderate to severe range of depression.
39. In explaining her diagnosis, Dr Reddan said that the applicant’s psychopathology was more complex than just one diagnosis. But she thought that his incapacity for employment would be about the 10% range assuming employment as a security guard or labourer, and also taking account of her assessment of the applicant's troubled background. She acknowledged that she was not aware that in the eight months between the applicant returning from Malaysia and his discharge, he served for only 30 days. The remaining period he was either AWOL or in hospital. He clearly was not functioning in his job for most of that period. Dr Reddan explained that his AWOL could be described in relation to the applicant’s inner distress in that he would run away so that he might not be distressed any more. However, the fact that it is inner distress that he was running from, he in fact, takes it with him anyway.
40. In relation to diagnosis, Dr Reddan did not doubt that the depression was part of the applicant’s diagnosis. She also explained the complexity of the applicant's case and that it was possible that he had PTSD from his childhood, but she thought it was more likely to be primarily a mood disorder than anxiety disorder, although mood disorders have anxiety as part of the symptoms. She noted also the incidents of attempted suicide and said that that was not uncommon with people who had Paraphilias, although completed suicides were not common in such people. In relation to the applicant’s lifestyle upon discharge from the Army, he was itinerant and scrounged for food and this could be reflective of a mental disorder at that time. She thought perhaps it might have been more unusual in a person with a major depressive disorder and she was inclined to the view that those symptoms, which included the degree of him not washing for three to five months, might be more indicative of a psychotic disorder. In the final analysis, she regarded the primary problem as being Paraphilia, rather than depression, although Dr Reddan also acknowledged a co-morbidity of Paraphilia with a Depressive Disorder.
41. The parties made submissions and subsequently, supplementary submissions about the weight that should be given to evidence about the eight year gap in employment between 1983 and 1991.
CONSIDERATION
42. The Tribunal has taken into account all the evidence and all the statutory and case law in arriving at a determination in this matter. At the outset, it is apparent that there is no major disagreement between the parties that the applicant is entitled to an invalidity benefit in terms of section 51(1) of the Act. The only real question to be determined is the classification level of invalidity which should be ascribed to the applicant as at the date of discharge.
43. The respondent submitted that it would not have been intended that section 51 would allow classification of pension to take account of impairments which were not related to the member’s retirement, if they would not have been taken into account under section 53 at the time of review. The respondent submitted that the approach should be to adopt the policy intended in the 1979 amendments in the application of section 51. The Tribunal agrees with that submission. Indeed, the Second Reading speech of the Minister specifies the intention of the amendments was to ensure taking into account only the impairments which caused discharge or which were “causally connected” (Hansard, House of Representatives, 1 March 1979, p. 532).
44. The question for the Tribunal is one of fact. It is to determine the incapacity which leads to the applicant’s discharge (Cocks v Commissioner for Superannuation (1990) 21 ALD 297). This requires determining the cause of the applicant’s inability to work at the time of discharge (Buck and Defence Force Retirement and Death Benefits Authority (S92/299, 15 October 1993). The incapacity may require description, based on determining the aetiology of the impairment, including the availability of later evidence, and this may have a significant influence on the member’s classification (Re Whiteford and the Commissioner for Superannuation (1987) 6 AAR 70 at 75-76).
45. In determining the percentage of incapacity for civil employment for the applicant at the time of discharge, the Tribunal must have regard to the requirements set out in section 53(1A) of the Act. The first issue is concerned with the requirements of section 53(1A) (a), which requires the Tribunal to have regard to "the vocational, trade and professional skills, qualifications and experience" of the applicant. In that regard, the Tribunal finds the applicant completed grade 10 at secondary school and spent a period of time working as a Tiler and a Trainee Plant operator. He then joined the Army and qualified as an infantryman. After his discharge, he worked in a number of positions, the skills of which might generally be described as those of an unskilled nature. Specifically, he worked as a kitchen hand, labourer, stockman, forklift driver, storeman, delivery driver, bus driver and security guard.
46. The second issue for the Tribunal to determine is set out in section 53(1A)(b), which refers to the kinds of civil employment which a person with the skills qualifications and experience referred to in the previous paragraph might reasonably undertake. In considering the evidence submitted by the applicant, the Tribunal is satisfied that the relevant kinds of civil employment for this applicant at the date of discharge would be those of labourer and security officer.
47. The third issue which the Tribunal must then consider is contained in section 53(1A)(c), which refers to the degree to which any physical or mental impairment of the applicant, being a prescribed physical or mental impairment, has diminished the capacity of the applicant to undertake the kinds of civil employment referred to in the previous paragraph. A "prescribed physical or mental impairment" is defined in section 53(1B) as meaning the impairment that was the cause, or one of the causes, of the invalidity or physical or mental incapacity, by reason of which the applicant was retired, whether or not, that impairment changed, for better or worse, since that retirement. "Retirement" includes "discharge" (see section 4 (1)), and this was the position of the current applicant at the time of his separation from the Army.
48. In determining what was the mental impairment or the cause or one of the causes of the invalidity by reason of which the applicant could have been discharged, a good deal of analysis and understanding of the applicant's background and medical conditions is needed. This is clearly evident now but, may not have been available or may not have been considered as comprehensively at the time of discharge. The applicant argues that he had a recurrent major depressive disorder as at the date of discharge and for the whole of his post service work life. That incapacity, which he claims existed from the date of discharge, should attract a 60% incapacity, effective from 6 January 1970. The applicant in effect, argues that the Tribunal should accept the medical opinion of Dr Lawford. The respondent on the other hand, argues that the Tribunal should accept the medical opinion of Dr Reddan which would have the applicant classified as Class C and with a 10% incapacity.
49. It is to be observed that both Dr Lawford and Dr Reddan recognise a major depressive disorder in the applicant as well as some form of paraphilia. It is also apparent that they both recognise a co-morbidity in the conditions of the applicant. Indeed, the severe nature of the disorder of the applicant appears to be acknowledged by both psychiatrists, although the overriding condition which is the cause of the applicant's incapacity is not agreed. Likewise, the seriousness of the condition at time of discharge and the percentage of incapacity is not agreed by those practitioners.
50. The Tribunal finds that the applicant certainly had a disturbed and unsupportive childhood. The Tribunal also finds that during the applicant’s military career, while initially effective and by the applicant's account, enjoyable, there are indications of his ineffectiveness as a soldier from mid-1968. He was first charged with failing to appear at a place of parade and using insubordinate language. These charges were laid after only 10 months of service. One month later, in June 1968, he was also charged with failing to appear at a place of parade, neglect to the prejudice of good order and military discipline, and also being absent without leave. However, he was shortly afterwards considered for and subsequently attended, a promotion course for the rank of Corporal in February, 1969. He passed one of the three subjects on that course. Two months later, in April 1969, he was again charged with disobeying a lawful command, this being an offence whilst serving overseas in Malaysia. He was later court-martialled in August 1969 for being AWOL for a period from May 1969 to July 1969. He pleaded guilty and was sentenced to 36 days detention.
51. Notwithstanding this unimpressive record as a soldier, the Tribunal must consider the extent to which it reflects on the subsequent and lengthy psychiatric examinations and evidence which is now available. The Tribunal must also determine which diagnosis it regards as being that which more correctly reflects all the evidence, including the medical evidence. Dr Lawford has emphasised the depressive disorder at the time of discharge being reflective of the applicant's behaviour immediately after discharge, where for the first six months, he sometimes lived in parks, slept on the streets and obtained vouchers to stay at men's hostels. Dr Lawford opined that the Army's failure to treat the applicant's depression resulted in his continued depression at the time of discharge, lasting at least six months. He maintains that the major factor preventing the applicant from adequately securing employment and caring for himself and his well-being was a recurrent major depression and that this is to be gleaned from his psychiatric history as a child and as an adult. Dr Reddan agreed the applicant was depressed at the time of discharge but concluded he primarily had a sexual paraphilia (Transvestic Fetishism). She did not consider that he suffered a major depression until 1999 or early 2000. However, she nevertheless, labelled his description of his behaviour immediately after discharge, as being of a serious nature, and suggested that it was indicative of a serious psychotic disorder more than of a major depression.
52. The Tribunal considered the differences in psychiatric evidence and in the end prefers the diagnosis of Dr Lawford. In taking account of all the evidence, it is clear that the applicant had a history of deprivation and abuse in childhood. He had an unsettled childhood in that his mother was unwell, married an alcoholic, and the applicant was placed in an orphanage from a very young age and subsequently with foster parents. He was separated from his sister, and had a prolonged period of loss or living in a stressful environment as a child. There is evidence of him having depressed moods in childhood, as well as being attached to his sisters clothing about the age of six, after she was adopted out and he was left alone in the orphanage.
53. His life, both as a child and as an adult is characterised by periods of relatively good functioning and periods of poor functioning, which one expects to find in cases of severe depression, particularly a recurrent severe depression. Dr Lawford emphasised that when the applicant is depressed, he has a really depressed mood with suicidal ideation, and suicidal attempts have also been evident. His depression is also characterised by a lack of energy, very negative thoughts about himself and believing that he is a very guilty person. In addition, his paraphilia only occurs when he becomes depressed. It does not occur, that is, his cross dressing does not occur, at other times. When he becomes depressed, he has little energy, poor concentration and sleep disturbance, as well as becoming a risk to himself.
54. Dr Lawford concluded this applicant has recurrent ,major depressive disorder as the primary cause, with a co-morbid paraphilia of a secondary nature. Dr Reddan concluded that his behaviour following discharge may even reflect some psychotic features, which also describes a person who clearly was not coping with life. But she opined that the childhood attachment to his sister’s clothing, while having no sexual connotation then, can, during adolescence move from affection to sexual excitement. She also considered the rumination about childhood unhappiness can mistakenly identify that as the cause of the condition, which she thinks is not the case here, although she went on to immediately say that his childhood certainly was a significant causal factor.
55. Trying to come to the correct or preferable decision some 36 years after the applicant’s discharge is not an exact science. However, given the extent of the evidence and the consistency and depth of the applicant’s dysfunctional background, from early childhood until he met his wife, together with the indicia of functional periods and non-functional periods in his life, the Tribunal accepts that the applicant suffered from a recurrent major depressive disorder at the time of his discharge from the Army with a secondary co-morbid paraphilia, as being the cause of his incapacity.
56. The fourth issue to be considered is whether the applicant has any other physical or mental impairment causally connected with his recurrent major depressive disorder. On the basis of all the medical evidence presented, the Tribunal finds that the applicant’s recurrent major depressive disorder is connected with his paraphilia, but that they are co-morbid conditions.
57. The fifth and final issue requires the Tribunal to determine the degree to which the applicant’s recurrent major depressive disorder has diminished his capacity to undertake civil employment from the 6 January 1970. In Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 Davies J, who was then president of the Tribunal said:
"The width or the range of 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 impediment 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 section 34 (1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment."
58. The applicant's difficulties from a psychiatric point of view were aggravated by his propensity to drink heavily until the year 2000. However, it is clear from the time that the applicant returned from Malaysia, he was having considerable mental and emotional stress. The Tribunal accepts as a matter of fact that the applicant had episodic depression up until and well after his discharge. It is apparent that he has not avoided working, but certainly his work became more productive from 1973 until 2000. From prior to his discharge in 1970 until he met his wife in 1973, he seemed to be dysfunctional although he worked periodically as a labourer, driver or general hand in various jobs. These working periods were of relatively short duration and he stated that leaving jobs was not related to the jobs themselves. It was his depression that caused him to move on regularly.
59. The degree of capacity for work with a depressive illness depended to some degree on the level of attention and concentration required of a job. As Dr Reddan stated, a mild to moderate degree of a depressive disorder, could still allow somebody to function as a labourer. However, the difficulty may arise even in such an occupation with the person's motivation. The more serious the depression the greater the difficulty with motivation, such that it will be a problem for the person to get up and go to work. A moderate to severe level of depression can affect work, particularly where more sustained cognitive effort is required. This may result in the person being more likely to be in a position where he or she cannot work at all.
60. The applicant describes a behaviour pattern whilst in the Army and for the first eight months or so following discharge, whereby a moderate degree of incapacity is evident. Factors such as lack of hygiene, as well as remaining unshaven and unshowered for months at a time, is a scenario of somebody who is probably quite unwell. Such is the opinion of Dr Lawford and the Tribunal accepts his opinion. Similar capacities for work could be said to exist for the categories of driver and security guard, all of which were actual or potential occupations for the applicant at or shortly after discharge. It seems that the applicant had some capacity for work at various times prior to and following discharge and that some judgement must be made about the level of his incapacity. The Tribunal cannot accept the submission that the applicant’s incapacity is 60% or greater. Equally, the evidence shows it was clearly above 10%. Based on the evidence presented to the Tribunal, it is also clear that the applicant’s incapacity appeared to reduce during the period 1973 to 2000, that is, the period following his marriage. The most stable period seems to be when he drove a passenger bus and maintained stable employment for periods of five years at a time. However, even accounting for these periods of stability, he may only be 60% productively employed during that period, at best. That period seemed to be subject to less incapacity than at discharge.
61. In the period just prior to discharge and in the two-year period following discharge, his employment and coping with life seemed to be much more erratic, and it may be that he was only capable of working for approximately 50% of the time. However, he had a number of short periods of employment over that three-year period following discharge, and taking those periods into account, the Tribunal determines that a more reasonable period of incapacity at discharge and for the three years following discharge, would seem to be 30%. This also takes into account that the applicant was depressed, highly anxious and disorganised during that period. This assessment also takes into account that over that period, the applicant clearly voluntarily chose not to work for some periods, such as when he and his New Zealand colleague decided to travel to Sydney, although he may have not been incapacitated.
62. In all the circumstances, the Tribunal determines that the degree of incapacity at the time of discharge for this applicant would was 30%. The Tribunal therefore finds that he is to be classified as Class B with effect from 6 January 1970, for the purposes of section 51 of the Act. The original decision is set aside and this new decision is substituted.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 19 July 2006
Date of Decision 19 December 2006
Counsel for the Applicant Ms D Kidson
Solicitor for the Applicant Gilshenan & Luton
Counsel for the Respondent Mr A Allan
Solicitor for the Respondent Australian Government Solicitor
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