Shingles and Defence Force Retirement and Death Benefits Authority
[2007] AATA 1086
•2 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1086
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1510
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM SHINGLES Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr I Alexander, Member
Date2 March 2007
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M.D. ALLEN
........................................
Presiding Member
CATCHWORDS
VETERANS ENTITLEMENTS – Defence Force Retirement and Death Benefits – whether the percentage of total incapacity in relation to civil employment at the date of discharge from the Army has been correctly assessed – Tribunal satisfied that any incapacity through orthopaedic disabilities was small and any affects due to PTSD symptoms were mild in the extreme – Tribunal determined Applicant’s incapacity at 25%, within the Class C scale of pension – decision under review is affirmed
Defence Forces Retirement Benefits Act 1948 – s 51-53
Defence Force Retirement and Death Benefits Act 1973 – s 30, s 34, s 53
Defence Force (Retirement and Death Benefits Amendments) Act 1979 – s 4
Defence Force Retirement and Death Benefits Authority v Heffernan (1978) 1 ALD 429
Re QX06/13 v Defence Force Retirement and Death Benefits Authority [2006] AATA 1091
Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156
Re McGovern v Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791
Re Thomson v Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
Re Bos v Defence Force Retirement and Death Benefits Authority (1977) 1 ALD 31
REASONS FOR DECISION
2 March 2007 Senior Member M D Allen Dr I Alexander, Member 1. On 26 February 2002 in a consent decision, the Administrative Appeals Tribunal determined that pursuant to subsection 51(6) of the Defence Force Retirement and Death Benefits Act 1948 (“the 1948 Act”), the Applicant be treated as if his retirement from the Australian Regular Army Supplement (National Service) on the ground of his physical or mental incapacity rendered him unable to perform his duties.
2. The Applicant was discharged from the ARAS (NS) on 26 October 1971. The incapacities deemed to be suffered by the Applicant at the time of his discharge were described as “bilateral prominences on the post aspects of the os calcia and post traumatic stress disorder”.
3. On 18 June 2002, the Applicant was classified under s 51 the 1948 Act as having 20 per cent incapacity in relation to civil employment, and hence was entitled to a Class C pension under the 1948 Act. An appeal to the Administrative Appeals Tribunal against that determination was unsuccessful but that decision was set aside and a re-hearing ordered following an appeal to the Federal Court.
4. The applicable legislation and its history and relevance to these proceedings has been succinctly set out in the written submissions of Mr Dillon of Counsel, who appeared for the Respondent, and we gratefully adopt that summary of the relevant sections of the applicable legislation in our reasons for decision.
legislation
5. The governing law in relation to this matter is the 1948 Act. Part V of the 1948 Act provides invalidity benefits for members of the scheme established by the Act who have been retired on the ground of invalidity or physical or mental incapacity to perform their duties. [NB. s 51(6) provides for the Defence Force Retirement and Death Benefits Authority (“the Authority”) to treat members as if they had been retired on the grounds of incapacity].
6. The initial classification of a member is made pursuant to s 51 of the 1948 Act. This section provides that the Authority shall determine the relevant member’s percentage of incapacity in relation to civil employment and shall classify the person according to the percentage of incapacity as follows:
60% or more: Class A
30% or more but less than 60%: Class B
Less than 30%: Class C
7. Section 52 provides for the rate of pension payable to a member classified either Class A, B or C. A member classified Class C is not entitled to the payment of an ongoing pension.
8. Section 53 of the 1948 Act gives the Authority the power to, from time to time, review a member’s classification according to the matters set out in ss 53(1A) and ss 53(1B). Sub-section 53(2) states that the Authority must specify the date from which the classification shall have effect. A member initially classified Class C is not entitled to be reclassified at any later date (ss 53(4)).
9. On 19 March 1979 amendments to the 1948 Act and the Defence Force Retirement and Death Benefits Act 1973 pursuant to the Defence Force (Retirement and Death Benefits Amendments) Act 1979 commenced. Those amendments introduced ss 30(2), 34(1) and 53(1A) into the 1973 Act and the 1948 Act respectively. Those amendments are for all practical purposes unchanged today.
10. As the 1948 scheme closed on 1 October 1972, at the time the amendments were made, it was not envisaged that any further members would be retired under s 51 of the 1948 Act. Therefore, amendments were not made to that section in line with s 30, 34 and 53 of the 1973 Act and 1948 Act respectively. It is to be noted that under s 51 of the 1948 Act, all that needs to be taken into consideration when classifying a member is the percentage of total incapacity in relation to civil employment. Significantly it does not provide that the incapacity needs to be a reason for which the member was retired. Section 4 of the Defence Force (Retirement and Death Benefits Amendments) Act 1979 amended s 30 of the Act to limit the assessment of the capacity of the retired members of the Defence Force to undertake civil employment, to that arising from “the physical or mental impairment of the member that caused the invalidity or mental incapacity because of which he or she was retired.” Section 53 of the 1948 Act includes the same restrictions.
11. The amendments were inserted as a result of the Full Federal Court decision in Defence Force Retirement and Death Benefits Authority v Heffernan (1978) 1 ALD 429, which held that s 34 allowed the Authority to take into account an illness which arose after the member’s retirement from the Defence Force. The second reading speech at paragraph 2, page 2, stated that the principles of assessment are:
“Directed to the extent to which an invalidity retiree’s capacity to gain civilian employment commensurate with his skills and employment background, is affected by the disabilities that caused his retirement or by any subsequent causally connected disability.”
12. In common with the learned Senior Member in QX06/13 and Defence Force Retirement and Death Benefits Authority [2006] AATA 1091, we adopt the submission that in applying s 51 of the 1948 Act:
“No account may be taken of impairments which were not related to the member’s retirement, if they would not have been taken into account under s 53 at the time of review.”
As the learned Senior Member continued in paragraph 44 in his reasons for decision:
“The question for the Tribunal is one of fact. It is to determine the incapacity which leads to the Applicant’s discharge. This requires determining the cause of the Applicant’s inability to work at the time of discharge. 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.”
13. There has been no dispute that at the time of his discharge the Applicant was suffering from bilateral prominences of the post aspect of the os calcis with exostosis, or in layman’s terms, heels spurs which had been surgically removed, and all current psychiatric reports opine that at the time of discharge he was suffering from a post traumatic stress disorder. In addition it is clear that the Applicant, either as a sequelae of his PTSD or as a separate condition, was suffering from alcohol dependence. The question for this Tribunal is to what degree of incapacity to engage in normal employment was the Applicant suffering at the time of his discharge from the Army.
14. Section 30(2) of the 1973 Act provides for the matters to which the Authority (and hence this Tribunal) is to have regard in determining the percentage of incapacity of a former member of the Defence Forces. As pointed out by Sheppard J in Freeman and Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 160, “it is only the matters referred to in ss 30(2) to which the Authority may have regard when assessing a former member’s degree of incapacity”. As was further stated by the Tribunal (DP RD Nicholson as he then was presiding) in Re McGovern and DFRDB Authority (1988) 16 ALD 791 at 792:
“The Tribunal considers that it is required to approach to relevant provisions in accordance with the followings principles:
1.The only matters which it may take into account in determining the percentage of incapacity are those referred to in the provision.
2.Accordingly, the Tribunal cannot take into account:
- the ageing process;
- a depressed labour market;
- a state of unemployment;
- the shortage of employment for those who might engage in a particular occupation;
- circumstances foreseeable only in the long term unless made appropriate;
- prevention of continuance in non-civil employment.
3.Regard must be had to the current capacity of the member at the time of the classification or reclassification not at the time of the injury which incapacitated him. This requires the Tribunal to review the decision of the Authority as at the date when it was made and not at the date when it was reconsidered but in so doing it should take into account all relevant evidence arising after that date.
4.In making the determination, the concept of incapacity for work as enunciated in Arnotts Snack Products Pty Ltd v. Yacob (1985) 57 ALR 229 in relation to partial incapacity as that of a reduced physical capacity, by reason of disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work rather than whether or not the injured employee suffered actual economic loss, should be kept in mind.
5.The words “vocational, trade and professional skills, qualifications and experience” in paragraph 34(1A)(a) ought not to be read narrowly.
6.In paragraph 34(1A)(b) the phrase “employment which a person might reasonably undertake” refers to a question whether it is reasonable to expect a person to undertake a specified employment as distinct from physical capacity upon which emphasis is given by paragraph 34(1A)(c).
7.In assessing the degree referred to in paragraph 34(1A)(c) regard must be had to the width, quality and nature of the range in employment opportunities and a value judgment, rather than a mathematical calculation, made.”
history
15. Prior to enlistment in the Army the Applicant, who had left school at age 15 had commenced working on farms. A lot of this work was seasonal – the longest period he was employed on any one farm was two years and the shortest six months.
16. The Applicant volunteered for National Service and after recruit training was allocated to the Ordnance Corps and trained as a Storeman Technical, dealing with motor vehicle spare parts. In order to serve in South Vietnam, the Applicant agreed to extend his period of National Service by eight months, so as to permit a full period of Vietnam service of twelve months.
17. On 10 September 1970 the Applicant commenced his Vietnam service, being posted to 2nd Australian Ordnance Depot at Vung Tau. Although the Applicant has given accounts of his service in South Vietnam, we regard that account as exaggerated. It is unfortunate that the Respondent did not investigate the Applicant’s claims more thoroughly. Had the services of a research organisation such as “Writeway” been engaged, their report would have been or material assistance to the Tribunal. There is, however, supporting evidence for his claim that because of his foot condition he was unable to wear Army boots and was reduced to wearing Army-issued sandshoes. This fact apparently caused further problems as a Senior Non-Commissioned Officer decided that although the Applicant was not wearing proper protective footwear, this was no impediment to his carrying out duties in perimeter patrolling and piquet duty.
18. Whilst serving at Vung Tau the Applicant received a letter from his wife informing him that according to military sources he had been discharged from National Service and as he had not returned home she believed he had left the marriage. We can only assume that when his period of two years National Service had expired there was an administrative error in Central Army Records Office, which ignored the fact that the Applicant had voluntarily extended his National Service by eight months in order to serve in South Vietnam.
19. Quite obviously this upset the Applicant and he threatened a Senior Non-Commissioned Officer with his rifle. This led to the Applicant undergoing psychiatric examination at 1 Australian Field Hospital, Vung Tau. The notes made by the examining psychiatrist are at document T5 of the documents prepared for the Tribunal pursuant to s 37 of the Administrative Appeals Act 1975. These notes disclose the following diagnoses, namely: “agitated depression (mild) in a soldier of dull normal IQ and asthenic personality who dislikes being in SV and separated from wife”.
20. In assessing the severity of this episode (which was diagnosed as “agitated depression”, we note that the condition was not so severe as to require hospitalisation, nor evacuation from the theatre. Likewise, no steps appear to have been taken to discipline the Applicant for the serious military offence of, “When on Active Service threatening a superior officer with a weapon” (see Army Act 1891 [as amended] – s 8(1)). No mention of this incident is to be found in the psychiatrists notes.
21. According to the Applicant, after he threatened his superior officer with his rifle, his rifle was taken from him and he was allocated to barman duties in the Sergeants Mess. This enabled him to drink more heavily than he had been, although he had been already consuming large amounts of alcohol. It also indicates that the base at Vung Tau was considered secure enough for the Applicant to be without a personal weapon.
22. Subsequent to the events detailed above, the Applicant returned to Australia on Rest and Recreation Leave. Just before he was due to return to South Vietnam he consulted a private medical practitioner regarding his calcaneal spurs. The result of this consultation was that he was admitted to Repatriation General Hospital, Concord, and his feet operated upon. Subsequently, he was discharged from the Army on 26 October 1971 without returning to South Vietnam.
23. At the time of his discharge the Applicant was assessed by the then Repatriation Department for pension purposes. A medical examiner determined that the Applicant was entitled to a pension calculated at 10 per cent of the general rate of pension for the incapacity described as “bilateral exostoses of os calces with excision”.
24. A further report by an orthopaedic surgeon, Dr Bottoms, on 28 March 1972 read (inter alia):
“This patient has bilateral claw feet and is likely to have continuing trouble with his feet. His present occupation as a storeman is likely to cause some stress on these feet which are therefore likely to continue to worsen. There is also a family history of foot trouble which indicates that he is also likely to have more severe symptoms in the future.”
25. Following discharge from the Army the Applicant returned to live at Woodonga with his wife. For a period of months he did not work but contented himself with going to the hotel each day and drinking until he had run out of money. Asked about his source of income at this time, he told this Tribunal that his wife was working, whereas he had told the previous Tribunal his wife was not working.
26. Eventually the Applicant’s then father-in-law became tired of this state of affairs and found the Applicant a job at the Army base at Bandiana, Victoria. This job was as a general hand.
27. Although now employed the Applicant continued to drink alcohol and this was facilitated by the fact the Army base had a “wet” mess. The Applicant consumed alcohol at morning tea and at lunch on the base. After work he resorted to a hotel.
28. The Applicant was employed by the Army at Bandiana for some eight months. He left that job after being advised by a supervisor that he was to be “sacked” because of his absences from work. He states that these absences were due to pain in his feet and the effects of over-indulging in alcohol.
29. Whereas the Applicant claims that a supervisor informed him he was to be “sacked” because of his frequent absences, there is no evidence that he received any warnings from his employers that his attendance record or work was unsatisfactory. We find it difficult to believe that the Applicant would have been peremptorily dismissed from employment with a Commonwealth Authority without first being subjected to a formal warning.
30. Apparently after voluntarily terminating his employment with the Department of Army the Applicant and his wife moved to Sydney. They lived on the Northern Beaches, and we know from the Applicant’s Record of Service that at a time he was in the Army, his mother was living at Fairlight which is a suburb of the Northern Beaches. Upon arriving in Sydney the Applicant did not initially seek employment but contented himself with attending hotels. After about one month, because he needed money, he obtained a paid job as a lube operator, lasting for some three months. The Applicant then purchased an orange juice run. This franchised business failed because the Applicant did not devote enough time and attention to it. He places the failure to properly attend to the business upon his frequenting hotels.
31. A series of jobs followed, together with moves to different towns including Brisbane, Sydney, Cowra, Albury and Canberra. In 1977 his marriage ceased.
32. Cross-examined the Applicant conceded that he had always been able to obtain a job whenever he needed to; his trouble was retaining employment. As he put it in his statement:
“I say that the main reasons that I would only stay for a short time with each employer were
(a)the effect of alcohol dependence coupled with my nervous state and recollection of Vietnam
(b)the fact that I did not like to be with people and would become unsociable and out of favour with the employer and others with whom a came in contact”.
33. The Applicant also referred in his evidence to loosing jobs because of being found drinking on the job; that on other occasions, employment had ceased because he had lost his driver’s licence because of drink driving convictions. Other employments were curtailed by the requirement to wear boots – a requirement with which the Applicant could not comply because of his foot problems.
34. Despite the Applicant maintaining that he was unable to retain employment because of his alcoholism and the effects of his PTSD, document T97, p220, is a reference dated 4 July 1977 which concludes “I will be sorry to loose him but he goes with my best wishes for the future”. Whereas document T97, p221, is a reference from the Secretary Manager of the Cowra Services Club Ltd which reads inter alia, “Graham carried out his duties in a satisfactory and competent manner and I would have no hesitation in recommending him for a similar position”. We are not persuaded to take those expressions as to his worth at other than face value.
35. In cross-examination the Applicant conceded that when he obtained the job at Bandiana he was able to perform the tasks required of him, and that at any time he needed to get a job he was able to get one. We are therefore satisfied that the Applicant has attempted to exaggerate the effects of his disabilities in his obtaining and retaining employment.
36. The histories obtained by various medical practitioners have varied. For example, in February 1991, Dr Duncan, a Psychiatrist at Concord Hospital noted, “He has a long history of very heavy alcohol consumption and also benzodiazepine usage”. A later report in May 1991 by Dr Duncan noted:
“From our assessments in a ward it seems clear he does not really have a full blown post traumatic stress disorder. He certainly did see some service in Vietnam and does have some mild post traumatic symptoms … However, on his return he worked very well for a large number of years and it has only been more recently that he has become dysphoric and started to have problems with flashbacks. It was felt that this was largely due to continuing alcohol and benzodiazepine abuse. His problems with affect modulation and regulation were felt to be largely due to a personality disorder with mixed anti-social narcissistic and borderline traits. His admission diagnosis was one of a major depressive episode without melancholic features…
He presents to me as someone who can still be a very effective worker as long as he can keep his alcohol and benzodiazepine use under control and his long term work prognosis is largely related to this”.
In a subsequent report dated 17 April 2000, Dr Duncan on the basis of further experience opined:
“Having reviewed the notes who are sent me and review in my own mind my impression of Mr Shingles, I feel that it is highly likely that his difficulties with anxiety , depression and substance abuse have their origins in a significant PTSD he developed consequent to his service in Vietnam…
He describes recently good child adjustment and most definitely was exposed to traumatic events in Vietnam and has becoming increasingly clear during my time at Concord Hospital it was not at all uncommon that these experiences to really only start to become only a problem 20 years later.”
37. Questioned in the original proceedings before the Administrative Appeals Tribunal Dr Duncan said
“If he was working to the extent that I was under the impression he was when I saw in 1991 through the 70s and 80s, he couldn’t have had disabling PTSD because he was still working at the time. So he may well have had significant symptoms” and continued, “As you are aware in my letter in February 1991 I talked about, you know, he was working as a truck driver for some years. If that is true, then I find it hard, that I would find it hard, to say he was disabled.”
38. A report from Dr Dent, Psychiatrist, dated 24 July 1992, does diagnose PTSD, but Dr Dent’s history of units served in by the Applicant is wrong. A later report by Dr Duncan dated 27 July 1992 states:
“I found it somehow difficult to be certain exactly what is wrong with him diagnostically. He clearly does have some post traumatic stress symptoms in a form of hyper vigilance, irritability and nightmares. They have only recently been a major problem in recent years and have really correlated with his inability to cope with continuing alcohol and benzodiazepine abuse…So I feel the primary problems is alcohol and drug abuse.”
39. On 14 December 2000, Dr Mickleburgh, Psychiatrist, prepared a report for the Respondent. Significantly in that report Dr Mickleburgh stated:
“Prior to his discharge there had been symptoms of mild agitated depression, hyper vigilance, irritability and nightmares as well as abuse of alcohol. The course of the subsequent psychiatric disorder was beginning to emerge. Thus, some symptoms were present at the time of his discharge and in my opinion, on the balance of probabilities they would have impaired his capacity to undertake employment as a farmhand or storeman to some extent. This is supported by his subsequent history of repeated failure to remain in employment. He had 28 jobs in 18 years then Total Permanent Incapacity. The disability progressively increased as time past.
The medical records lacked enough information for me to be able to estimate with any validity or reliability, the percentage level of his employment incapacity as a farmhand or storeman at the time of his discharge.”
40. Dr Robertson, Psychiatrist, in a report dated 22 April 2003 opined, “… that he was quite severely disabled from his PTSD at the time he left the Army”. In a later report he estimated that “at the time of discharge from the Army the Applicant had an impairment of between 30% and 40%”, adding, “I have also taken into account the fact that he was suffering from a disorder or disease which was progressive in nature, and I think that common sense dictated that this issue needs to be factored in to the assessment of disability.”
41. If by his last comments, Dr Robertson means that he has factored in to his assessment of between 30 to 40 per cent incapacity, an allowance for future deterioration, then his opinion must be discounted to that extent in assessing actual incapacity at time of discharge.
42. In assessing any opinion of Dr Robertson we also take into account that he had no information as to the Applicant consulting a psychiatrist in South Vietnam following the incident of threatening a superior officer. Neither did he have reference to the Medical Officer’s notes following the consultation. Further, we do not accept Dr Robertson’s opinion as to the rarity of late-onset PTSD. Our experience in this Tribunal is that it is common among veterans, and this view was also held by his treating psychiatrist, Dr Duncan. Dr Mickleburgh also acknowledged the existence, although small, of delayed-onset PTSD.
43. Dr Dinnen is very experienced in the treatment of veterans. In his report of 15 June 2006, Dr Dinnen states, “It is not uncommon with post traumatic stress disorder that the disability is greater after the traumatic events, particularly with servicemen in the immediate period after they have been discharged from the service.” Cross-examined, Dr Dinnen stated that it is very common in a range of psychiatric disorders that they fluctuate in severity as a reflection of live events. He had previously stated that the Applicant’s condition had worsened in the1990s, and in his report he notes that the Applicant’s condition had improved within a year or two after leaving the Army.
44. Dr Mickleburgh in a more recent report dated 22 December 2006, stated in answer to a series of questions, “In my opinion, Dr Dinnen’s observations as to onset, improvement and subsequent decline of the mild PTSD are a credible interpretation”. And later, “I agree with Dr Dinnen that Mr Shingles was abusing alcohol during October 1971”. And further, “I do not know to what extent Mr Shingles’ alcohol abuse affected his capacity to work as a soldier or as a storeman in October 1971. He was not incapable of carrying out some duties and in fact he was apparently coping as a barman. However, his overall efficiency would probably have been adversely affected.” Finally he said, “Overall, according to the information available to me, it is likely that Mr Shingles would be incapacitated from the employment as a farmhand, storeman to a small extent, 10% to less than 30%”.
45. In evidence Dr Mickleburgh reiterated that in his view the Applicant’s real problem was a very severe dependence upon alcohol.
46. Dr Sachdev, Orthopaedic Surgeon, examined the Applicant on 11 December 2001. The history obtained by Dr Sachdev is:
“Following discharge, he did seasonal work. He managed because he did not have to wear boots. In 1976, while he was working as a barman at the Commercial Club at Albury, he started having severe pain in both his heels. He was assessed by an Orthopaedic Surgeon, Dr Bartram, who operated on his heels again and removed further spurs from both heels. Following this procedure, after convalescence, he settled down and was working in jobs which did not require wearing boots.
In 1978 he started getting pain in both heels again. But he did not seek any treatment. He moved to Brisbane and brought a truck, doing interstate truck driving. He told me that he was able to manage that and he continued to do this job until 1989, when he developed symptoms suggesting of post traumatic stress disorder, for which he was treated at Concord Hospital and had psychiatric treatment and he was put on a pension because of this.”
47. In answer to a series of questions in the referral letter, Dr Sachdev opined in his report inter alia:
“In answer to question 2, he had restrictions in relation to tasks requiring long standing or wearing restricting footwear such as army boots, at a time of discharge from the Australian Defence Force. I do feel that these restrictions are consistent with the state of Mr Shingles’ feet at the time of his discharge from the Australian Defence Force on 26 October 1971…
In answer to question 6, the Achilles tendonitis which was present at the date of discharge from ADF on 26 October 1971, would have restricted him from wearing boots in order to carry out duty of a Storeperson or Labourer. However, if he did not have to wear boots, he should have been able to perform most of the duties of a Storeperson except, perhaps, for unloading vehicles. He should have been able to do receiving and checking incoming goods, lifting and stacking goods which were not more than twenty kilograms in weight, operating machinery as well as packing and issuing stores. Lifting heavy loads and unloading heavy weights from vehicles would have caused aggravation of his symptoms due to Achilles tendonitis.”
48. We note that Dr Sachdev was not challenged in cross-examination in the previous proceedings as to the accuracy of the history he obtained from the Applicant. He was cross-examined regarding his assessment of impairment and maintained his opinion that the degree of impairment caused to the Applicant by Achilles tendonitis was small.
49. Dr Conrad, a General Surgeon, had prepared a report on behalf of the Applicant. Questioned by the Tribunal he stated:
“I think that taking Dr Sachdev, I think his thinking was along the same lines. Between 10 and 30 which would sort of average out at 20. I think that’s a very realistic and very fair figure and I don’t think that anybody would quarrel with that.”
50. We take this to be that Dr Conrad was prepared to accept an impairment of 20 per cent. We also noted that as opposed to Dr Sachdev, who is an Orthopaedic Surgeon, Dr Conrad is a General Surgeon, so that where the opinions conflict, we prefer the opinion of that specialist in the relevant area, namely orthopaedics.
51. Assessing the concepts which the DFRDB Act requires us to take into consideration we find:
(i)Vocational, trade and professional skills, qualifications and experience of the Applicant :
- He was educated to High School level leaving school at age 15. He then was employed as an agricultural labourer. During his Army Service he was trained as a storeman technical.
- Subsequent to service he has held a variety of jobs including a general labourer, self-employed distributing agent, truck driver/courier and as a barman. Currently he is in receipt of a Special Rate Pension from the Department of Veterans’ Affairs.
(ii)Kinds of civil employment which might reasonably be undertaken:
- In the opinion of the Tribunal, there is a great range of low skilled employments which a person with the skills, qualification and experience the Applicant might reasonably undertake.
- These include that of a farm or general labourer, barman, truck driver and process worker. His training as a storemen in the Army would not only have equipped him to work as a storeman in civil employment but also indicates a competent level of reading and basic mathematics. Positions such as a gatekeeper, tally clerk or low level clerical work would be within his competence.
(iii)Prescribed physical or metal impairment of the Applicant:
- The evidence is that the Applicant’s prescribed impairments are “bilateral prominences on the post aspects of the os calcia, PTSD either with or causing alcohol dependence.”
52. The question then is what was the percentage of total incapacity in relation to civil employment suffered by the Applicant at the date of his discharge from the Army?
53. In assessing the percentage of incapacity we must keep in mind the remarks of Davies J in Re Thompson and Defence Force Retirement and Death Benefits Act (1987) 6 AAR 424 at 433, namely:
“The width of the range of employment opportunities is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment .indeed not greatly reduced 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 judgement of the extent to which, expressing in the percentage, and taking into account only the matter set out in s34(1A). A person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental employment. ..”
54. His Honour also referred with approval to Re Bos and Defence Forces Retirement and Death Benefits Authority (1977) 1 ALD 31 at 34-35, and the concept that in assessing incapacity in relation to civil employment, concepts such as a loss of opportunity and benefits should be taken into account, notwithstanding the insertion of s 34(1A) into Act following the decision in Re Bos supra.
55. So far as the Applicant’s orthopaedic disabilities are concerned, we are satisfied that at the date of discharge, any percentage of incapacity in terms of s 51 of the DFRDB Act 1948 was small.
56. Prior to proceeding on Rest and Recreation Leave from South Vietnam, the Applicant had not been performing the duties of a storeman at 2 AOD, but this was not brought about by any orthopaedic injury. There is no evidence that at that time he was incapable of performing the duties of a storeman because of his inability to wear boots. Likewise, one of his complaints seems to be that not withstanding an inability to wear boots, he was still required to perform all the other duties, eg patrols and piquet duties required of a soldier in an operational zone.
57. Following the operation performed at Repatriation General Hospital, Concord, the Applicant was awaiting discharge from the Army. He then performed a series of tasks which were obviously designed to occupy him while discharge procedures were finalized.
58. After discharge he was, through his father-in-law, able to obtain a general labouring type job at an Army unit in Bandiana. There is no evidence he was physically unable to cope with that position. At about this time his orthopaedic injuries were assessed for pension purposes by the Repatriation Commission and a pension calculated at 10 per cent of the general rate of pension allocated. We note that 10 per cent is the lowest rate at which a pension can be paid.
59. Whereas Dr Conrad ultimately thought 20 per cent was a correct reflection of the Applicant’s degree of disability, we are more persuaded by Dr Sachdev, as his opinion seems to correspond to the actual degree of incapacity demonstrated. As pointed out by Dr Sachdev, the Applicant could still work as a storeman and we note that at a later time the Applicant was able to work as an agricultural labourer cutting asparagus as that job did not entail wearing boots.
60. Calculating his psychiatric impairment at the time of discharge is more difficult. Various psychiatrists have attempted to estimate this degree of incapacity by reference to the history given by the Applicant now. This of course includes his now psychiatrist, Dr Altman. The first Tribunal conveniently summarised these estimates of incapacity at paragraph 77 of its decision. We are more persuaded however, by contemporary reports; in particular reports of, and history obtained by, Dr Duncan.
61. At the outset, it is quite clear that the Applicant did not suffer any severe psychiatric illness whilst in South Vietnam. The referal to the psychiatrist refers to a soldier who “works well, normally quiet and conscientious”, and recommends that he be kept in the unit. The referral notes, “Married immediately prior to leaving Australia. Has been concerned over welfare problems recently”.
62. Much has been made of the fact that the condition described as post traumatic stress disorder was not known at the time the Applicant was psychiatrically assessed in South Vietnam. Nevertheless, his complaints were not the symptoms of PTSD as described in DSM IV but of depression and concern over his feet and his wife. Suffice it to say he was not regarded as sufficiently indisposed as to justify a return to Australia nor the prescribing of medication.
63. Post discharge the Applicant did not immediately seek work but on his account was drinking heavily. However, he did ultimately obtain a job and although he says he left before he could be sacked, there is no evidence of any official warning that his behaviour was placing his job in jeopardy. He and his then wife moved to Sydney and again he was able to obtain employment when he felt of the need.
64. The Applicant claimed that his real problem was the inability to retain employment due to his alcohol abuse. This statement does not fit with the very positive references the Applicant obtained from the Cowra Services Club and the Galloping Grape Restaurant.
65. We accept that the Applicant was a heavy drinker of alcohol post-service but his first charge of driving while having an excess level of alcohol in his blood was in September 1979. That is to say, one of the criteria for substance abuse as in DSM IV was not evidenced until 1979.
66. When the Applicant was first assessed for psychiatric illness at Repatriation General Hospital, Concord by Dr Duncan, that Doctor noted that from assessment in the ward the Applicant did not have a full-blown PTSD. On his return from South Vietnam he had worked very well for a number of years and it was only recently that he had become dysphonic and started to have problems with flashbacks.
67. The history then obtained by Dr Duncan accords with the history the Applicant gave to Dr Sachdev. Although Dr Sachdev was assessing the Applicant in regards to his orthopaedic injuries, the history given by the Applicant is significant. In particular, in his statement that it was not until 1989 that he developed symptoms of PTSD.
68. Whereas it is not now disputed that the Applicant does have PTSD and alcohol dependence, the evidence is that the symptoms of PTSD, if they affected the Applicant at all at time of discharge, were mild in the extreme. Likewise, his alcohol dependence was present but given the references referred to above and his ability to obtain employment whenever he needed to, we find that he has exaggerated it effects upon him at time of discharge and thereafter until probably about 1979 – the time of his first conviction for an alcohol-related offence.
69. We are mindful of the caution as expressed by Davies J in Re Thomson (supra) at p433, namely, that the determination of a percentage of incapacity is not to be undertaken as if it were a mathematical calculation.
70. Counsel for the Applicant referred to the loss of entitlements that would have come from continued employment. Balanced against that is the fact that benefits such as sick leave or superannuation are not always an incident of employment. For example, many self-employed persons do not have or have to make their own allocation for sick leave, annual leave and superannuation. In the 1970s superannuation was not necessarily made available to all employees. These types of benefits are to an extent ephemeral and can only be treated as a contingency to be taken into account generally.
71. There is no objective scale upon which to assess the percentage of the Applicant’s inability to undertake employment, but having regard to the material before us we find that it amounted to 25 per cent. As that figure is within the scale for a pension at Class C, the decision under review is affirmed.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:
[Amanda Aitken]
.....................................................................................Associate
Dates of Hearing 23 & 24 February 2007
Date of Decision 2 March 2007
Counsel for the Applicant Mr E White
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
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