Shingles and Defence Force Retirement and Death Benefits Authority
[2004] AATA 492
•17 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 492
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/19
GENERAL ADMINISTRATIVE DIVISION ) Re GRAHAM JAMES SHINGLES Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Dr M E C Thorpe, MemberDate17 May 2004
PlaceSydney
Decision Pursuant to section 43 of the Administrative Appeals Tribunal 1975, the decision under review is affirmed. ..............................................
Ms S M Bullock
Presiding Member
Defence Force Retirement and Death Benefits – Classification in Respect of Incapacity – Assessment at the Time of Retirement of Bilateral Achilles Tendinitis with Exostosis of Os Calcis – Post Traumatic Stress Disorder
Defence Forces Retirement Benefits Act 1948 ss 51, 52
Defence Force Retirement and Death Benefits Act 1973 s 30
Defence Force Retirement and Death Benefits Amendment Act 1979
Re Thomson and Defence Forces Retirement and Death Benefits Authority (1987) 6 AAR 424
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
Re Griffiths and Defence Forces Retirement and Death Benefits Authority [2000) AATA 181
Re Greer and Defence Forces Retirement and Death Benefits Authority (2001) 63 ALD 282
Freeman v Defence Forces Retirement and Death Benefits Authority (1985) 5 AAR 156
Re X and Defence Forces Retirement and Death Benefits Authority (1980) 3 ALR N 58
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Defence Force Retirement and Death Benefits Authority v O’Fee (FCA, unreported NSW G71 of 1984, 6 June 1985)
Re McGovern and Defence Forces Retirement and Death Benefits Authority (1988)16 ALD 791
REASONS FOR DECISION
17 May 2004 Ms S M Bullock, Senior Member Dr M E C Thorpe, Member 1. Mr Graham James Shingles, the Applicant, joined the Army, on 10 February 1969 as a volunteer (T4). He was discharged from the Army on 26 October 1971 (T19). Following an appeal to the Administrative Appeals Tribunal (“the Tribunal”), that Tribunal decided on 26 February 2002, that for the purposes of subsection 51(6) of the Defence Forces Retirement Benefits Act 1948, Mr Shingles should be treated as if he had been retired from the Defence Forces on the ground of invalidity or physical or mental incapacity to perform his duties (T140). Mr Shingles was subsequently classified on 18 June 2002 under section 51 of the Defence Forces Retirement Benefits Act 1948 as having 20 per cent incapacity, (Class C) with effect from 27 October 1971, the day after his discharge (T145). Mr Shingles sought a review of this decision (T149), and on reconsideration, the decision of 18 June 2002 was affirmed (T156). Mr Shingles has made an application for review to the Tribunal of that reconsideration decision.
2. A Hearing was conducted in Sydney on 27 October 2003, and resumed on 28, 29 and 30 October 2003. Mr Shingles was represented by Mr K Duncombe of Counsel and the Respondent, the Defence Force Retirement and Death Benefits Authority, was represented by Mr B Dubé of Counsel. Evidence was provided at Hearing by Mr Shingles; Dr G Altman, Consultant Psychiatrist; Dr A Robertson, Consultant Psychiatrist and General Psychiatrist; Dr A Duncan, Consultant Psychiatrist; Dr W E Mickleburgh, Consultant Psychiatrist; Dr A Sachdev, Orthopaedic Surgeon and Dr P Conrad, Orthopaedic Surgeon. There were documents taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T Documents,” T1 - T159) and a number of exhibits listed in Schedule 1 to this decision.
issues
3. The issue in this matter is whether or not Mr Shingles’ classification under section 51 of the Defence Forces Retirement Benefits Act 1948 is correctly assessed as having a percentage of incapacity under 30 per cent (Class C) or whether he should be classified at a higher percentage of incapacity so as to have a classification of Class B. Currently, Mr Shingles has been assessed as having 20 per cent incapacity for the impairments of bilateral Achilles tendinitis with exostosis of os calcis and mild post traumatic stress disorder (T156). It is not contested that the employment Mr Shingles was suited to at the time was as a storeman or store-person.
Legislation
4. A decision in this matter requires consideration of the Defence ForcesRetirement Benefits Act 1948 (“the 1948 Act”). Section 51 of the 1948 Act deals with the classification of percentage of incapacity and relevantly provides the following classification:
PERCENTAGE OF INCAPACITY
CLASS
60 or over
A
30 and less than 60
B
Under 30
C
5. The 1948 Defence Force Retirement and Death Benefits Scheme closed on 1 October 1972. On 19 March 1979, amendments in relation to the 1948 and 1973 Acts commenced pursuant to the Defence Force Retirement and Death Benefits Amendments Act 1979. Those amendments introduced, as relevant, subsections 30(2) and 34(1) into the 1973 Act and subsection 53 (1A) into the 1948 Act. At the time of the amended legislation, it was not envisaged that any further members would be retired under section 51 of the 1948. Therefore, amendments in relation to section 51 of the 1948 Act were not made in line with sections 30 and 34 of the 1973 Act and section 53 in respect of the 1948 Act.
6. Section 53 of the 1948 Act deals with reclassification of percentage of incapacity and states at (1A):
“In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a pensioner;
Or
(aab) what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a pensioner who has died;
The Authority shall have regard to the following matters only:
(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.”
7. Of relevance and as a guide to determining the percentage of incapacity in relation to the civil employment of a member, is subsection 30(2) of the Defence ForceRetirement and Death Benefits Act 1973 (“the 1973 Act”) which states:
“(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.”
8. Also of relevance as a guide in considering reclassification of incapacity is section 34 of the 1973 Act which relevantly states in subsection 34(1A):
“(1A)
In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a recipient member; or (aab) what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a recipient member who has died;
the Authority shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the recipient member;
(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 recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient 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.”
Evidence of Mr Graham James Shingles
9. Mr Shingles, whose date of birth is 10 July 1949, left school at the age of approximately 15 years and worked initially as a farmhand and labourer. Mr Shingles stated that he had an active social life and was involved in sporting activities including football and swimming. Mr Shingles explained that he had moved from the country to Sydney and became involved with the wrong type of crowd, bringing him to the attention of the police. Mr Shingles then looked at the possibility of working as a Missionary. He did not pursue this to finality and later enlisted as a volunteer in the Australian Army (“the Army”), enlisting for a two year period with a further extension of eight months. Mr Shingles’ core army training was in stores management but he was also involved in weapons training and physical training. Mr Shingles undertook a 12 month tour of duty in Vietnam, having been in the Army for approximately 18 months by that time. Mr Shingles’ total time of service in the Army was two years and eight months and he was discharged on 26 October 1971.
10. In Vietnam, as well as undertaking routine patrols outside the base, Mr Shingles also undertook duty on the wire perimeter of the base, which was patrolled overnight. Mr Shingles stated that he had nightly contact with the enemy, sometimes minor but also involving more serious occurrences. He described seeing “bright lights” which suggested to him that it was the enemy firing around his camp. Mr Shingles described himself as becoming a “nervous wreck” because he was left with the impression that the enemy was moving at close range through the area. Mr Shingles explained that his camp was next to a helicopter pad and he would see helicopters come and go with the wounded and dead. He also described seeing the seriously burned victims of flame-throwers who had been “burnt to a crisp”.
11. Mr Shingles described a number of incidents occurring during his tour of duty in Vietnam. While in Vietnam, Mrs Shingles in Australia was informed that Mr Shingles’ Army pay had been cut off and she was told that Mr Shingles had been discharged from the Army and had left her. Mr Shingles received a letter from his wife concerning those matters, he told the Tribunal, and he took it to his Company Sergeant Major (“CSM”) to ask this officer to do something about that predicament. Mr Shingles explained to the Tribunal that he pointed a gun at his CSM and threatened to shoot him if he did not do something to rectify the situation. The CSM then telephoned Mrs Shingles and told her that her husband was still in the Army, in Vietnam, and had not left her. Mr Shingles stated that his weapon was taken off him and he was subsequently reassigned to working in the Sergeant’s Mess (T98, p226). He did not take part in any patrols after that incident.
12. Mr Shingles described another incident which occurred when he was travelling to Nui Dat in about January 1971. At that time, he saw South Vietnamese regional soldiers shoot four Viet Cong prisoners. Mr Shingles described this as murder and stated that he was very shocked.
13. Another incident occurred when a friend of Mr Shingles was so horrified at his experiences in Vietnam that the soldier deliberately shot his foot off in order to hasten his opportunity to return to Australia. Mr Shingles helped his friend at the time of this incident and described the friend’s foot as “just hanging off”. Mr Shingles’ friend later lost his foot.
14. Another incident occurred when a soldier was blown up whilst using white spirit and diesel to burn out the latrines as part of a routine cleaning exercise. Mr Shingles also told the Tribunal about one Christmas Day, when another friend became inebriated and then shot a number of allied soldiers.
15. Mr Shingles informed the Tribunal that in the Army he experienced considerable trouble with his feet, starting in about May 1970, which is when he first received treatment. This occurred after his core training. Mr Shingles continued to have more trouble with his feet in Vietnam. He was given longer waterproof Army boots which were laced halfway up his leg and contained an inner sole and an aluminium plate to protect his feet. These boots provided no assistance to him, and because of his painful bilateral foot condition, he was provided with Army-issue sandshoes in about late December 1970 or possibly by 16 January 1971 (T5, p10). Mr Shingles would wear these sandshoes whilst on patrol which he undertook two or three times per week up until the end of February 1971, a period of approximately six weeks. He had a great fear in Vietnam of treading on “pungi” sticks, which were booby traps set by the enemy, consisting of sharpened bamboo poles which had human excrement smeared on them and were dug into the ground and camouflaged. Anyone treading on the “pungi” sticks experienced great pain and obvious infection if they penetrated the skin. Mr Shingles was also afraid of the snakes and scorpions in the area, particularly given the relatively unprotected footwear he was forced to wear because of his bilateral foot condition. Corporal Doug Lindgren, sought permission not to take Mr Shingles out on patrol because of the obvious danger of wearing sandshoes, but permission was denied (T83, p135). Mr Shingles later consulted the Army Medical Officer who said that due to Mr Shingles’ foot condition, he should not be in the Army, let alone in Vietnam. In July 1971, Mr Shingles had an operation on his feet to remove some spurs and again had further surgery on his feet in 1976 for a similar procedure.
16. In October 1971, during his Discharge Medical, Mr Shingles told the doctor that he had no health problems. He did this, he explained to the Tribunal, because he just wanted to get out of the Army as quickly as he could and return to his wife. At that time, Mr Shingles believed that if he had described his medical problems his discharge would have been delayed.
17. Mr Shingles told the Tribunal that he was a “teetotaller” before his enlistment in the Army. He stated that he increased his alcohol consumption in camp before going to Vietnam and there was a further increase in alcohol consumption in Vietnam as a result of trying to combat his nerves and also as part of socialising after duty. Mr Shingles stated that whilst in Vietnam he would become inebriated every night and this worsened after undertaking patrols. When he was reassigned to duty in the Sergeant’s Mess (T98, p226), he was responsible for locking up the alcohol and would often help himself to alcohol, drinking by himself. Prior to discharge from the Army in October 1971, Mr Shingles undertook light duties, working in the Officer’s Mess, checking the identification of those wishing to use the Mess. After this, Mr Shingles worked in the Medical Wing.
18. By 1972 or 1973, when out of the Army, Mr Shingles received his first charge for driving under the influence of alcohol and lost his licence for three years. He lost his licence again in Canberra and was charged for alcohol-related driving offences on two occasions, once when in Brisbane and then in New South Wales. Mr Shingles lost his licence again in 1976. Mr Shingles stated that he had alcohol-related offences incurring fines, having his driver’s licence suspended, or loss of his licence. His last driving under the influence of alcohol charge occurred in early 1990 and it was at this point that the Vietnam Veterans’ Counselling Service began to assist him. Mr Shingles stated that he attended Alcoholics Anonymous in 1978 at the suggestion of an employer who had dismissed him. In 1980, Mr Shingles also attended counselling in Brisbane as well as Alcoholics Anonymous.
19. In 1974, Mr Shingles applied to rejoin the Army. He was initially accepted but then, stated that his application was withdrawn as he was found unsuitable for service on medical grounds (T29, p59). Mr Shingles stated that he wished to rejoin the Army because he could not resettle in civilian work, he was drinking heavily and was in an anxious state at that time.
20. Once having left the Army, Mr Shingles was given a 10 per cent Disability Pension for the spurs on his feet. Mr Shingles was able to obtain employment as a general-hand by way of his father-in-law. Later, he was told that he was drinking too much and if he did not resign from the position, he would be asked to leave. Mr Shingles’ feet were becoming more painful and he stated that his “nerves were very bad and he was drinking more heavily and taking days off work”.
21. Mr Shingles informed the Tribunal that he had numerous jobs in civilian life. He explained that he tried to run his own business such as an orange juice run, but stated that this did not remain viable because of his alcohol consumption and nerves. At the same time, Mr Shingles was doing part-time maintenance work for a real estate agency and his wife was running a boarding house. Mr Shingles worked intermittently at a rock quarry but could not continue due to the difficulty he experienced when wearing boots. He undertook bar work in various hotels as well as casual work in Albury. In relation to this, however, Mr Shingles stated that the relevant Union at that time told him he had to wear steel-capped boots, which he could not do. Mr Shingles worked in Canberra in 1978/1979 but continued to consume alcohol, further explaining that he was self medicating, as a way of trying to cope with his “nerves”. Mr Shingles stated that he was dismissed from various positions during that period. In 1979 to 1980, Mr Shingles had a number of short term positions but again was having problems with his feet and having to deal with people. In 1980, Mr Shingles had his own trucking business for approximately ten months and (with his own truck) would make deliveries to Brisbane, working six to eight hours at a time, two or three days per week. In 1981, Mr Shingles worked interstate for Ansett making deliveries between Melbourne and Sydney. This work ceased because he lost his licence in about 1984. Mr Shingles worked at the Cowra Abattoir and, when he lost his licence, he swept the floors of the abattoir up until 1989. At various times, when he did have his licence, Mr Shingles undertook casual driving. In 1989, Mr Shingles broke his right ankle and was on Sickness Benefits for six or seven months. After that time, he worked casually, delivering goods around Sydney. He lost his licence for three years in 1990 or early 1991 and then was provided in 1992 with the Special Rate or the “TPI pension”.
22. Mr Shingles noted that a Department of Veterans’ Affairs Pension Officer had completed an Employment History Questionnaire with him in 1992 and Mr Shingles had read the document and signed it (T52). Mr Shingles stated that he could not imagine telling the Departmental Officer that he was a truck driver for 18 years, as it appeared in that Questionnaire. He also denied that he worked 40 to 60 hours per week. Mr Shingles stated that he finished work in early 1991 and that he was on a great deal of medication at that time.
23. Mr Shingles informed the Tribunal that he did not recall completing a Lifestyle Report with the Department of Veterans’ Affairs (T52, pp100-109). Mr Shingles completed a Disability Pension Claim (Exhibit R2, p35) on 1 November 1990. In relation to the “nervous condition” claim, he recorded that he first noted symptoms in 1970. Mr Shingles told the Tribunal that this was partially correct but the claim was not in his handwriting. The claim recorded that Mr Shingles was unable to sleep, that he had recurring nightmares, excess sweating, alcohol addiction, shaking, and that he was moved to tears easily. The claim form also indicated that he had been attending counselling at the Vietnam Veterans’ Counselling Service at Parramatta because of his nerves. In terms of employment, the Disability Pension Claim form noted that between 1971 and 1974, Mr Shingles worked as a storeman at the Department of Defence, from 1974 to 1979 he undertook hotel work as a barman and from 1979 until 1990 he was self employed as a driver. In evidence to the Tribunal, Mr Shingles noted that he was attending the Vietnam Veterans’ Counselling Service for approximately 12 months, before the 1990/1991 driving under the influence charge. He had been consulting a general practitioner in Cooma concerning his nervous condition and in 1997 consulted Dr M Dent, Consultant Psychiatrist, in Cremorne (T65, p138).
24. Mr Shingles also noted that he had consulted a psychiatrist in Vietnam in 1971 (T5, p11). The resulting report, dated 29 January 1971, indicated that Mr Shingles was worried about his wife who had threatened to take pills. He also wanted treatment for his feet. Mr Shingles stated that he could not recall telling the psychiatrist about his worry for his wife taking pills, noting that she was not like that. The psychiatrist noted that Mr Shingles was suffering from “Agitated Depression (mild)” (T5, p11). The report further noted Mr Shingles’ background suggesting parental deprivation and an adolescence disturbed by multiple jobs, “bad crowds”, and some police trouble (T5, p12).
25. Mr Shingles did not recall seeing Dr S Jelbart who was a Senior Medical Officer with National Mutual Insurance (T49, pp 91, 92). Dr A Duncan, Psychiatrist, had written to Dr Jelbart in relation to Mr Shingles’ claim for post traumatic stress disorder. Dr Duncan noted that Mr Shingles was admitted to the Concord Repatriation General Hospital (“Concord Hospital”) on 14 January 1991 after Dr Duncan saw Mr Shingles in the Outpatients Clinic several days previously. Dr Duncan also noted that Mr Shingles had been seen by one of the psychologists at the hospital in December 1990 and had referred Mr Shingles to Dr Duncan for assessment because of concerns about Mr Shingles’ “mood state” (T49, p91). Dr Duncan concluded that when in Concord Hospital, Mr Shingles did not have “a full blown Post Traumatic Stress Disorder” (T49, p93). The admission diagnosis made by Dr Duncan on that occasion was that Mr Shingles had a major depressive episode without melancholic features. Dr Duncan concluded that Mr Shingles was a person who could still be a very effective worker as long as he could keep his alcohol and Benzodiazepine use under control. Mr Shingles informed the Tribunal that in more recent times, Dr G Altman, Consultant Psychiatrist, has been treating him for approximately eight years. Mr Shingles stated that it was not until recently that he had “faced up to the fact” that he had an alcohol problem.
26. There is a report from Dr D Li, General Practitioner, dated 2 March 1990 which reported anxiety, insomnia, but no reports prior to that (T42, p75). In relation to these symptoms, Mr Shingles stated that he was disturbed at night and this has been happening for many years, although he could not point out any reference to this in the contemporaneous material. Mr Shingles explained that he did not tell anyone about his symptoms in those days although he believed he had told Dr Duncan about nightmares in 1989. Mr Shingles further noted that the dreams he experienced were of being overrun by thousands of Viet Cong whilst he was patrolling on the wire perimeter of the camp. He stated that the dreams involved “blood exploding” everywhere. He noted that Corporal Lindgren was in the same tent as Mr Shingles and had advised that he seek some help as Mr Shingles would be “screaming his head off” in his sleep. Mr Shingles stated that this started in about 1972. In civilian life, Mr Shingles noted that he would wake up at times finding himself trying to strangle his wife, thinking she was an enemy soldier. Mr Shingles noted that in about 1977 or 1978 he took his child, without consent, from the family home until the police caught up with him a few months later. Mr Shingles stated that Mrs Shingles did not want him to have anything to do with her or their child because of his drinking and his anxiety.
evidence of dr g altman, consultant psychiatrist
27. Dr Altman provided two reports dated 4 September 1997 (T64) and 28 June 1999 (T92), and provided oral evidence to the Tribunal.
28. Dr Altman noted that he had been treating Mr Shingles since 17 October 1995 for post traumatic stress disorder and that the Department of Veterans’ Affairs had recognised that since 1992, Mr Shingles was totally and permanently unfit to work as a result of that war-related and chronic condition. Dr Altman noted that Dr M Dent, Consultant Psychiatrist, had referred Mr Shingles to him. Dr Altman believed that the diagnosis of post traumatic stress disorder could have been established earlier than his first consultation with Mr Shingles but was unable to confirm who first diagnosed the disorder (T64/136). Dr Altman opined that the history provided to him by Mr Shingles suggested that Mr Shingles is likely to have suffered from severe chronic post traumatic stress disorder from the time of serving in Vietnam onwards. Dr Altman cited reports of a surgeon referring Mr Shingles to a psychiatrist in Vietnam in 1971, and of Mr Shingles subsequently undergoing psychiatric assessment at that time. Dr Altman was of the view that there were also symptoms of anxiety and depression in 1971. Mr Shingles was “aggressive” on his return to Australia and, Dr Altman commented, Mr Shingles could not hold down jobs (having between approximately 20 or 30 positions over a period of 18 years). Over the years, Dr Altman’s treatment of Mr Shingles has involved several hospital admissions (T92, p201).
29. On the second consultation, Mr Shingles told Dr Altman of some traumas he had experienced in the Army whilst serving in Vietnam. Dr Altman informed the Tribunal that Mr Shingles’ symptoms and history met the diagnostic criteria for post traumatic stress disorder. There was the difficulty however, that post traumatic stress disorder as a diagnosis, was only established in the American Psychiatric Association “Diagnostic and Statistical Manual of Mental Disorders” (“DSM – IV”) in 1980. Diagnoses prior to that time were made of reactive depression, or stress reaction but they bore no direct correlation to post traumatic stress disorder.
30. Dr Altman acknowledged the fact that there was no reporting of symptoms suggested to him and that there was a delayed onset of post traumatic stress disorder. Dr Altman stated, however, that it would be unusual to have no manifestation of symptoms for 25 years. Dr Altman had considered Dr Duncan’s report of May 1991 (T49, p93) and suggested that the conditions could have “grumbled along” and then deteriorated. In this regard, Dr Altman noted Dr Duncan’s letter dated 17 April 2000 (T119/280), which indicated that Mr Shingles had been admitted under Dr Duncan’s care to Concord Hospital. Dr Duncan had noted that he felt “somewhat shame-faced” in reading his earlier report and his conclusion, at that earlier time, that Mr Shingles did not have post traumatic stress disorder but had some mild symptoms. More recently, Dr Altman noted Dr Duncan’s view that:
“…it was not uncommon for them (Vietnam veterans) to function surprisingly well for a number of years after returning from Vietnam and then some other, possibly unrelated incident, triggered the emergence of what was clearly a significant PTSD” (T119, pp260, 261).
31. Turning to the Applicant’s alcohol abuse, Dr Altman concluded that Mr Shingles has many of the symptoms of that condition and noted that the features of alcohol abuse are different to post traumatic stress disorder (although there are some similarities). Dr Altman opined that Mr Shingles was not more likely to have alcohol abuse than post traumatic stress disorder.
32. Dr Altman explained to the Tribunal that one has to be careful in concluding that the diagnostic criteria for post traumatic stress disorder may appear not to be present because psychiatric examination during the 1970’s may not have lead to the right questions being asked to elicit answers which would indicate whether or not there was post traumatic stress disorder present. Certainly by 1991, there were DSM –IV diagnostic criteria present for post traumatic stress disorder. If the condition was not diagnosed by then, there was the possibility that the condition was missing.
33. In terms of assessment, Dr Altman opined that Mr Shingles is moderately disabled, at least to the level of 30 to 60 per cent. At the time of discharge in 1971, Dr Altman opined that Mr Shingles had moderate incapacity based on Mr Shingles’ heavy alcohol consumption, having many jobs, and being aggressive towards his wife.
34. Alcohol would have been focused upon by earlier treating professionals, Dr Altman suggested, because it was an obvious presenting problem. It is Dr Altman’s view, however, that post traumatic stress disorder predisposed Mr Shingles to the consumption of large amounts of alcohol. Furthermore, alcohol would have made Mr Shingles more depressed.
35. Dr Altman stated that he had no reason to doubt Mr Shingles, although he acknowledged that there might be a shortfall in the history. The history available is indicative of post traumatic stress disorder, particularly noting typical relationship problems, being aggressive, frequent changes of jobs and alcohol abuse.
evidence of dr a robertson, consultant forensic and general psychiatrist
36. The Tribunal had the benefit of reports from Dr Robertson dated 22 April 2003 (Exhibit A3) and 21 May 2003 (Exhibit A4), and Dr Robertson provided oral evidence to the Tribunal.
37. Dr Robertson stated that he obtained no history of Mr Shingles threatening his CSM with a rifle as a result of his concerns about misinformation provided to Mrs Shingles. The psychiatric history taken in Vietnam on 29 January 1971, in Dr Robertson’s opinion, mainly concerned discussion with Mr Shingles about missing his wife, having some parental deprivation problems and problems during his adolescence. That was a different history to that obtained by Dr Robertson. The two main issues for Mr Shingles around 1971, from Dr Robertson’s perspective, seemed to concern Mrs Shingles and Mr Shingles’ foot condition. Dr Robertson did not recall being presented with a history of anxiety from Vietnam or any clinical features of post traumatic stress disorder.
38. Dr Robertson’s recollection was that Mr Shingles was reporting nightmares before he left Vietnam, but there did not seem to be any official records of nightmares until 1989 or 1990. Dr Robertson later opined that it was remotely possible that Mr Shingles had post traumatic stress disorder, also noting that a diagnosis of post traumatic stress disorder was not possible in 1980 (as had other experts) as that condition was not diagnostically recognised until much later. Dr Robertson stated that until psychiatrists learned what questions to ask patients, it was possible a diagnosis of post traumatic stress disorder would be missed. Upon consideration of the fact that the Concord Hospital’s notes (Exhibit R2, p26) excluded post traumatic stress disorder, Dr Robertson stated he would need to know what questions were asked and what discussions took place at the case conferences convened (to discuss patients including Mr Shingles) in order to determine why the condition was not identified.
39. Dr Robertson believes that Mr Shingles’ excessive alcohol consumption is a result of post traumatic stress disorder and further opined that the disorder was marked by alcohol and Benzodiazepine abuse. The fact that Mr Shingles may have had a difficult early family life and was involved with the police did not, in Dr Robertson’s opinion, increase the likelihood of some other condition being present.
40. Dr Robertson told the Tribunal that out of the 1,000 to 2,000 cases of post traumatic stress disorder he has treated, or prepared medico-legal reports for, he could count few people who had an onset of post traumatic stress disorder 20 or 30 years later. Dr Robertson believed that Mr Shingles’ having post traumatic stress disorder upon his discharge from the Army, could be evidenced by reference to the fear he had of going on patrol in his sandshoes, as well as noting Mr Shingles’ sleep disturbance, nightmares and phobic anxiety. Dr Robertson accepted that Mr Shingles could have post traumatic stress disorder arising out of Vietnam service and very soon after leaving Vietnam because it made sense to him. Furthermore, there was a reference to Mr Shingles needing to see a psychiatrist on 13 January 1971, the referral being made by a surgeon (T5, p10).
41. Dr Robertson thought it probable that at the time of discharge, Mr Shingles would have had 40 per cent incapacity and would have been moderately disabled despite full-time employment. This conclusion was supported because although Mr Shingles was in full-time employment, he had eighteen jobs in short succession. Furthermore, Mr Shingles was suffering from alcohol abuse or dependence, as well as depression and these were highly disabling problems. Further indicia of Mr Shingles’ suffering from post traumatic stress disorder was his failed marriage. Dr Robertson concluded that post traumatic stress disorder causes distress even in the absence of alcohol abuse but the combination of these two conditions confirms the assessment of 40 per cent incapacity. There was no history of any other trauma which could have triggered post traumatic stress disorder in the 1980’s or 1990’s.
evidence of dr p conrad, orthopaedic surgeon
42. The Tribunal had the benefit of reports from Dr Conrad dated 16 April 2003 and 9 May 2003 (Exhibit A2) and Dr Conrad provided oral evidence to the Tribunal.
43. Dr Conrad opined that, commencing in 1969, Mr Shingles has suffered from “bilateral Achilles tendonitis with calcification of spurring of the posterior aspect of the heels whilst in the Army in 1969” (A2, p2). Dr Conrad noted that Mr Shingles has had two operations on the spurs and the calcification in his feet. Due to his losing his balance, Mr Shingles fractured his right ankle in 1989 and this incident was probably caused, in Dr Conrad’s view, by a pre-existing instability in Mr Shingles’ right foot as a result of his bilateral achilles tendinitis with calcification. The feet problems are considerably disabling, particularly now, coupled with Mr Shingles’ right ankle condition.
44. Dr Conrad assessed Mr Shingles as having 20 per cent incapacity of both feet (Exhibit A2) at the time of discharge. At Hearing, Dr Conrad was of the view that upon discharge from the Army, Mr Shingles’ bilateral foot condition caused him slightly more than a moderate degree of incapacity. Dr Conrad told the Tribunal he thought that Mr Shingles’ post traumatic stress disorder would be assessed at 10 per cent incapacity. For the feet alone, Dr Conrad concluded that it was fair to assess incapacity at between 10 and 30 per cent.
45. Considering occupational possibilities, Dr Conrad opined that Mr Shingles could do light cleaning and light stores work whilst wearing slippers or light suede shoes. He could not engage in excessive walking, standing, or going up and down stairs. Mr Shingles would have difficulty undertaking full-time stores work. In forming his opinion about assessment, Dr Conrad explained that he was aware that there were psychological problems in addition to a problem with excessive alcohol consumption.
Evidence of Dr A Sachdev, Orthopaedic Surgeon
46. Dr Sachdev provided evidence by telephone. The Tribunal had the benefit of two reports from Dr Sachdev, both dated 11 December 2001 (T138, T139).
47. Dr Sachdev noted that Mr Shingles suffered from “Achilles tendinitis with calcification and spurring of the posterior aspect of his heels” whilst he was in the Army in 1969 (T138/325). Initial treatment was conservative but then Mr Shingles had surgery, in July 1971, to excise the spurs in addition to the calcification of the Achilles tendons (T27). The Achilles tendinitis would have restricted Mr Shingles, in that he would not have been able to wear hard boots. He would, however, have been able to perform most of the duties required of a store-person without hard boots (T138 p326). Dr Sachdev opined that at the time of discharge, Mr Shingles’ incapacity due to his feet would have been small in the order of 10 per cent to 30 per cent.
48. When in civilian employment, after discharge from the Army, Mr Shingles experienced feet problems and had a second surgical procedure which the Tribunal notes was conducted by Dr N S Buckmaster, Orthopaedic Surgeon, on 10 September 1976 (T34). Dr Sachdev accepted the medical opinion contained within the T-Documents that Mr Shingles would need further bone removal as was concluded by Dr A Bartram in 1972 (T27). Dr Sachdev noted that in 1988, Mr Shingles fractured his right ankle (T138, p323) which was treated by open reduction and internal fixation [the Tribunal notes that the right ankle injury occurred in 1989 (T41, p43)]. The fracture had united but degenerative changes involving that joint were experienced. Since discharge, the disability arising from Mr Shingles’ feet has increased because of the fracture of his right ankle in 1988. Dr Sachdev considered that the Applicant now has a moderate impairment that is between 30 and 60 per cent (T139). Accordingly, Dr Sachdev’s view is that Mr Shingles’ “current lower limbs” symptoms are more related to his fractured right ankle which has aggravated the pre-existing condition of Achilles tendinitis. The limp Mr Shingles has was likely to relate to the fracture of his right ankle, Dr Sachdev opined. Dr Sachdev noted further that Achilles tendinitis should not provide a limp lasting a lifetime.
49. Dr Sachdev accepted that Mr Shingles could only undertake light work but he did not accept that the problems he has now (and has had for 20 years) are due entirely to Achilles tendinitis. Dr Sachdev did so, on the basis of Mr Shingles’ history, which includes problems with his feet recurring three months after discharge It was the ankle injury, in Dr Sachdev’s opinion, which placed Mr Shingles into a higher category of incapacity. Dr Sachdev concluded that upon discharge, Mr Shingles was managing light work and was able to continue this until the injury to his right ankle.
50. Dr Sachdev acknowledged that the opinion from Dr Conrad was made two years after his own and he accepted Dr Conrad’s description of Mr Shingles’ condition as at 16 April 2003 (Exhibit A2). Dr Sachdev did not accept Dr Conrad’s assessment of incapacity however, concluding that Achilles tendinitis would never equate to that level of incapacity.
Evidence of Dr A duncan, psychiatrist
51. Dr Duncan provided evidence to the Tribunal by telephone. The Tribunal had the benefit of the following reports: February 1991 (T48); May 1991 (T49); May 1992 (T53); and 27 July 1992 (T58). The Tribunal noted that Dr Duncan uses the terms alcohol and Benzodiazepine abuse as well as alcohol and Benzodiazepine dependence in relation to Mr Shingles.
52. Dr Duncan noted that Mr Shingles had been admitted to Concord Hospital under Dr Duncan’s care on three occasions, the first on 14 January 1991 (T58). Dr Duncan noted on this occasion he had seen Mr Shingles in the Outpatients Clinic where he presented as depressed and weepy, unable to enjoy life over the past two or three years, feeling estranged from his family and friends, and at times had been suicidal. It was apparent to Dr Duncan at that time that Mr Shingles had been abusing Benzodiazepine and alcohol for some years and was dependant on these substances (T48, p90). The further history taken by Dr Duncan was that over the previous three years, Mr Shingles was feeling tense most of the time, was reporting nightmares of things he had seen in Vietnam, and was also experiencing flashbacks to Vietnam. Mr Shingles reported to Dr Duncan that just after returning from Vietnam, he was consuming several alcoholic drinks to steady his nerves in the morning, before being able to go to work. The pattern of heavy alcohol consumption and additional Benzodiazepine abuse continued over the years. Dr Duncan reported that Mr Shingles attended Alcoholics Anonymous meetings, in about 1980, with little progress being made.
53. Dr Duncan noted some post traumatic stress disorder symptoms such as hyper-vigilance, irritability and nightmares but these had only been a major problem in recent years. It was not possible, because of the continuing alcohol and Benzodiazepine abuse, for Dr Duncan to conclude whether Mr Shingles had a primary post traumatic stress disorder and associated substance abuse or whether he had a primary substance abuse problem and associated post traumatic stress disorder symptoms (T58, p122). Dr Duncan noted that when Mr Shingles was detoxified, he presented as neither anxious nor depressed, but became overwhelmed by anxiety, feeling that he could not cope even if minor demands were placed upon him. He may well have had a possible diagnosis of borderline personality disorder, Dr Duncan further opined. Dr Duncan noted that Mr Shingles reported being virtually a “teetotaller” prior to Vietnam and that he had wanted to be a Missionary. In terms of employment, Dr Duncan noted that in the past few years, Mr Shingles had seen himself go from a “successful owner truck driver to a man with major financial problems and no significant relationships” (T58, p122).
54. At Hearing, Dr Duncan noted that he was young when he was working at Concord Hospital and treating Mr Shingles. The more veterans Dr Duncan has treated over the years, the more cases he has seen of late onset of post traumatic stress disorder. Mr Shingles’ treatment as an in-patient was discussed in a case conference of at least five or six doctors. On 24 January 1991, (Exhibit R2 folio 26), it was recorded that a diagnosis of post traumatic stress disorder had been excluded. The treatment focus for Mr Shingles was on his alcohol dependence and Benzodiazepine abuse. Dr Duncan recalled that it was difficult to diagnose Mr Shingles. The doctors at the time underplayed the traumatic side of Mr Shingles’ service in Vietnam. Mr Shingles did not want the doctors to focus on his alcohol consumption but on his Vietnam service and Dr Duncan noted that it was always a tension when assessing such matters as to whether or not the history being given was accurate or coloured for the purpose of the veteran obtaining a Disability Pension.
55. The Tribunal noted a report by Dr Duncan dated 17 April 2000 (T119), in which Dr Duncan recorded that at that time, he felt somewhat “shame-faced” when reading his earlier report in which he concluded that Mr Shingles did not have full blown post traumatic stress disorder. Dr Duncan’s most recent thoughts on this matter are that his earlier conclusion was inappropriate (T119, p260).
56. Dr Duncan stated that if post traumatic stress disorder was accepted as being present in 1991, then in relation to how significant the condition had been in 1971 at the time of discharge from the Army, his perception was that Mr Shingles was functioning fairly well at that time. The issue then was whether the symptoms were present in 1971 and Mr Shingles was ignoring them or whether he was just not aware of the symptoms. Dr Duncan concluded that one could make a diagnosis in 1991 of post traumatic stress disorder but that was not to say that in 1971, post traumatic stress disorder was present from the symptomatic point of view. Dr Duncan found it hard to accept a higher incapacity rating than 30 per cent in 1971, when he looked at Mr Shingles from the occupational point of view. Dr Duncan opined that given his understanding of the history, Mr Shingles was a very vulnerable person and less likely to cope with the rigours of Army life than others.
Evidence of Dr W E Mickleburgh, Consultant Psychiatrist
57. Dr Mickleburgh provided a report dated 14 December 2000 (T132). In 2000, Dr Mickleburgh opined that Mr Shingles’ war-time trauma in Vietnam was associated with symptoms of anxiety and depression and was later expressed as a post traumatic stress disorder, with Mr Shingles’ alcohol abuse increasing over the past thirty years to a severe intractable addiction. Dr Mickelburgh concluded that the addiction “severely impaired Mr Shingles’ personal, family work and recreational life” (T132, p289).
58. At the time of reporting, Dr Mickleburgh was of the belief that Mr Shingles’ post traumatic stress disorder persisted to a moderate degree. Dr Mickleburgh further noted that Mr Shingles is unable to work and has been in receipt of a “TPI Special Rate Pension” for the past ten years. Dr Mickleburgh found no evidence of conscious or unconscious exaggeration by Mr Shingles of his symptoms.
59. Dr Mickleburgh opined that Mr Shingles experienced traumatic military events during his overseas service in Vietnam so that the initial determining factors of his psychiatric invalidity occurred prior to his discharge from the Army. Prior to his discharge then, there were symptoms of mild agitated depression including irritability, nightmares and alcohol abuse. Dr Mickleburgh opined “the course of the subsequent psychiatric disorder was beginning to emerge” (T132, p291). Thus some symptoms were present at the time of discharge and they would, in Dr Mickleburgh’s opinion, have impaired Mr Shingles’ capacity to undertake employment as a “storeman” or farmhand to some extent. Such a conclusion was supported, in Dr Mickleburgh’s view, by Mr Shingles’ subsequent history of repeated failure to remain in employment having had 28 jobs in 18 years.
60. Dr Mickleburgh did not provide an assessment of incapacity in percentage terms as he stated that the medical reports lacked enough information to allow him to do so (T132, p291).
consideration and findings
61. We have reached a decision in this matter, taking into account the oral and documentary evidence, the legislation and the case law.
62. Mr Shingles presented his evidence to the best of his ability considering the affluxion of time since having retired from the Army on 26 October 1971 (T20). Following a decision made pursuant to section 42C of the Administrative Appeals Tribunal Act 1975, on 26 February 2002, the Tribunal decided, pursuant to an agreement reached between the parties, that Mr Shingles should be treated as if he had retired on the grounds of invalidity or inability to perform his duties (T140). Subsequently Mr Shingles was classified on 22 June 2002 under section 51 of the 1948 Act. On reconsideration of that determination, Mr Shingles was classified to be Class C with effect from 27 October 1971 (the day after Mr Shingles retired) (T156). A classification of Class C means that the person is not entitled to the payment of an ongoing pension nor can their classification be reviewed. It is the reconsideration decision which Mr Shingles wishes the Tribunal to now review.
63. Section 51 of the 1948 Act provides that the Defence Forces Retirement and Death Benefits Authority should determine the relevant member’s percentage of incapacity in relation to civil employment and that the person should be classified according to the percentage of incapacity. Section 51 of the 1948 Act does not prescribe any specific matters which must be examined in determining a member’s degree of incapacity for civil employment, except to note that subsection 51(2) of the 1948 Act requires a consideration of the percentage of total incapacity of the person in relation to civilian employment. Assessing the percentage of incapacity is a difficult requirement under section 51 of the 1948 Act.
64. Under section 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, as was noted by the Respondent, it does not provide that the incapacity needs to be a reason for which the member was retired. Section 4 of the Defence Forces Retirement and Death Benefits Amendments Act 1979 amended section 30 of the 1973 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 was amended to include those same restrictions.
65. The Second Reading Speech in relation to the amendments contained within the Defence Force Retirement and Death Benefits Amendments Act 1979 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 effected by the disabilities that caused his retirement or by any subsequent causally connected disability.” (page 2, paragraph 2).
66. The Tribunal accepts the Respondent’s submissions on this point and notes there has been no dispute by the Applicant. Certainly, in the Applicant’s Statement of Issues and Statement of Facts and Contentions, the proposition put by Mr Dubé, in relation to how section 51 of the 1948 Act should be applied, is also reflected with the Applicant applying the criteria for assessing the classification as provided in section 30 of the 1973 Act.
67. It is the Tribunal’s view that it would not have been intended for section 51 of the 1948 Act to allow classification of pension to take into account impairments which were not related to the member’s retirement. This is because the classification of pensions, at the time of review, or reclassification under section 53 of the 1948 Act, would not take any unrelated impairments into account. The proper approach in this matter is to adopt the policy intended in the 1979 amendments in the application of section 51 of the 1948 Act. Furthermore, the Tribunal’s view is that reference to incapacity by reason of which a member is retired, is a reference to incapacity for work in the Defence Force. The retirement of such members is a matter for the relevant service and not the Authority. The task of the Authority is limited to ascertaining what was the invalidity or the physical or mental incapacity by reason of which the member retired from the relevant service, the answer to which is a question of fact.
68. Accordingly the Tribunal considers that in applying section 51 of the 1948 Act, the criteria to be used in determining the percentage of incapacity in relation to civil employment of a person should be:
(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 above 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 other such matters as are relevant.
69. The limited scope of the Authority’s power has been confirmed in a number of decisions (see Cocks v Commissioner for Superannuation (1990) 21 ALD 297). In ReGriffiths and Defence Force Retirement and Death Benefits Authority [2000] AATA 181, the Tribunal stated at page 15:
“In assessing the disability due to the knee problem, as already stated, only the left knee is to be considered as the right knee was not symptomatic at the time of retirement and was not a cause of physical incapacity at the time.”
The Authority, and the Tribunal standing in its shoes, is not precluded from determining the true cause of the members’ incapacity. Incapacity, as we have noted, is a question of fact and is a description of the circumstances preventing a member from performing his or her duties. Thus, in Re Greer and Defence ForceRetirement and Death Benefits Authority (2001) 63 ALD 282, Deputy President Forgie concluded that it is permissible to look at other sources of evidence in determining the invalidity or physical or mental incapacity because of which the person retires. Thus, there may well be the necessity to correctly diagnose or re-describe, as Mr Dubé submitted, the impairment which caused the member’s incapacity to perform his or her duties. Once the incapacity, the cause of which the member retired is determined, the objective question then must be asked as discussed in ReThomson and Defence Forces Retirement and Death Benefits Authority (1987) 6 AAR 424 and the Full Federal Court decision in Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156, of what kind of civil employment a person with appropriate skills, qualifications and experience might reasonably undertake. The question is not whether the member would have in fact gained employment in particular areas.
70. It is always difficult, as a number of the medical experts have expressed in this matter in either documentary evidence before the Tribunal or in oral evidence, to determine what the true situation is in relation to Mr Shingles when we are deciding about matters which occurred over 30 years ago on the day after discharge, that is 27 October 1971. In Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALR N 58 at paragraph 19, that Tribunal thought it proper to consider the whole of the evidence as to Mr X’s situation right up to the present day on the basis that it would be illustrative of his condition generally. We note in the Full Federal Court decision in Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 and in Freeman v DefenceForce Retirement and Death Benefits Authority (supra), the Federal Court concluded that only the considerations expressed in section 30 of the 1973 Act may be taken into account. Thus, the Tribunal is of the view that in relation to the application of section 51 of the 1948 Act, other matters such as a depressed labour market, the ageing process and the shortage of employment cannot be taken into account (see also Defence Force Retirement Benefits Authority v O’Fee (FCA, unreported NSW G71 of 1984, 6 June 1985) and Re McGovern and Defence Force Retirement Death Benefits Authority (1988) 16 ALD 791).
71. In this matter, the Defence Force Retirement Benefits Authority determined on reconsideration that the impairment that had caused incapacity and Mr Shingles’ retirement was bilateral Achilles tendinitis and exostosis of os calcis and mild post traumatic stress disorder and determined that the kinds of civil employment he might reasonably undertake were as a farmhand and storeman or store-person. It should be noted that the primary determination in this matter considered Mr Shingles’ mental health condition should be diagnosed as anixiety.
72. The medical opinion in relation to Mr Shingles’ physical impairment is consistent in concluding that at the time of discharge, Mr Shingles suffered from bilateral Achilles tendinitis with exostosis of the os calcis. Contemporary medical records and later medical opinions from Dr Conrad and Dr Sachdev confirm this, although there is a difference of opinion as to the percentage of physical incapacity. The Tribunal finds that the physical impairment present and the cause of Mr Shingles’ retirement was bilateral Achilles tendinitis with exostosis of the os calcis.
73. The mental impairment on retirement was described as anxiety at the time of the original decision, and on reconsideration, it was described as mild post traumatic stress disorder. There is evidence from a number of eminent psychiatrists which consistently indicates that with the benefit of hindsight, Mr Shingles had post traumatic stress disorder on retirement. Even Dr Duncan in oral evidence on consideration of his earlier opinion, concluded that Mr Shingles probably did have post traumatic stress disorder to a mild degree on retirement. Mr Dubé, in submissions, conceded as much, although not in relation to the extent of the incapacity arising out of that impairment. It is the Tribunal’s view that at retirement, Mr Shingles met the diagnostic criteria for post traumatic stress disorder contained within DSM-IV. While there is no contemporaneous material indicating nightmares or flashbacks, the Tribunal accepts Mr Shingles’ evidence that these were present. There is also psychiatric opinion which indicates that alcohol abuse or dependence is a consequence of post traumatic stress disorder. The Tribunal accepts that view and so finds. The Tribunal notes that the first disqualification for driving under the influence of alcohol occurred in 1973. The Tribunal finds therefore that on the day after retirement, the description of Mr Shingles’ mental impairment was post traumatic stress disorder and not anxiety. We have reached this finding based on the whole of the material available to us at the time of the decision by the Tribunal on review.
74. It is commonly agreed that the type of civilian employment which Mr Shingles could have reasonably undertaken at the time of retirement was as a store- person. In noting this, the Tribunal has considered the facts that Mr Shingles left school at age 18, worked as a general farmhand prior to enlistment in the Army and in the Army obtained his qualifications as a store-person and worked in that field in addition to his duties on patrol. After discharge from the Army, Mr Shingles worked in various positions at least until about 1974 as a store-person and then later in various occupations as a barman and a driver.
75. The Tribunal now turns to the central issue in this matter, which is the degree of incapacity expressed in percentage terms, in relation to Mr Shingles’ condition of the lower limbs. In reaching a decision on this issue, we note Re Thomson and Defence Force Retirement and Death Benefits Authority (supra) which while dealing with section 34 of the 1973 Act, provides some guidance in this matter. Davies J stated at 433:
“The width of the range of employment is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but may preclude the person from working more part-time or intermittently. Thus the determination of a percentage is not to be undertaken as if it were a mathematical calculation. Rather, it is a value judgement of the extent to which, expressed in percentage terms, and taking into account only the matters set out in subsection 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment”.
On the day after discharge, and for some time after that, Mr Shingles was able to work as a storeman and in other associated positions in full-time employment. The Applicant was able to wear soft shoes and while requiring another operation to his feet in 1976, appears (from oral evidence provided by Mr Shingles and from contemporaneous documentary evidence) to have continued in employment. On at least one occasion, Mr Shingles was able to work in his own business on an orange juice run in addition to providing part-time maintenance work for a real estate agent. The Tribunal also finds that while the bilateral foot condition worsened in 1989 after
Mr Shingles fractured his right ankle, he certainly was not operating at the day after discharge at a degree of incapacity which would indicate moderate incapacity as reflected in the B classification of 30 to 60 per cent.
76. In relation to Mr Shingles’ condition of post traumatic stress disorder, the Tribunal has accepted that this condition was present at the time of retirement but again, when reference is made to the contemporaneous material, the degree of impairment is not made out on all of the material to be greater than 30 per cent. In this regard, the Tribunal notes that in terms of symptoms of post traumatic stress disorder and the secondary condition of alcohol abuse or dependence, the first driving under the influence charge occurred in 1973, two years after discharge. Furthermore, the condition of post traumatic stress disorder, while possibly impacting on the number of short term jobs undertaken by Mr Shingles, did not prevent the Applicant from gaining fulltime employment. The Tribunal also notes that there is no treatment or record of psychiatric assistance until at least the 1980’s. All of the evidence suggests to the Tribunal that post traumatic stress disorder was mild at the time of retirement and that it only assumed prominence, as reflected in reports from psychiatrists and by his coming into contact with the police, as a result of the adverse effects of alcohol consumption, occurring years after retirement and more especially in the late 1970’s and 1980’s. Hospital admission for post traumatic stress disorder did not occur until 1991. The Tribunal also notes the Special Rate Pension was granted in 1992, reflecting that Mr Shingles was totally and permanently unable to work at that time.
77. The Tribunal must make its determination based on all of the material available to it. This is a situation where contemporaneous records in addition to more recent evidence must be weighed up. The recent medical opinion in relation to Mr Shingles’ incapacity is summarised in the table below:
Expert
Recommended Percentage of Incapacity for Bilateral Achilles Tendinitis
Recommended Percentage of Incapacity for Post Traumatic Stress Disorder
Dr G Altman, Consultant Psychiatrist
Moderate incapacity to the level of 30 to 60 per cent.
Dr A Robertson, Consultant Psychiatrist and General Psychiatrist
Moderate disability to the level of 40 per cent.
Dr A Duncan, Psychiatrist
Hard to accept a higher incapacity rating than 30 per cent in 1971.
Dr W E Mickleburgh, consultant Psychiatrist
No assessment of incapacity made in percentage terms at the time of discharge as medical reports lacked enough information to allow it.
Dr A Sachdev, Orthopaedic Surgeon
At the time of discharge incapacity would have been between 10 and 30 per cent. The Applicant now has a moderate impairment between 30 and 60 per cent.
Dr P Conrad, Orthopaedic Surgeon
In his report, a 35 per cent incapacity at the time of discharge. At Hearing, an assessment at the time of discharge of incapacity of between 10 and 30 per cent was fair.
10 per cent incapacity.
As we have said, it is always difficult in these matters to achieve a determination without indulging in speculation or unsubstantiated assumptions. The assessments contained in the above table do not all reflect incapacity at the time of discharge. Thus, while the Tribunal has determined that there was definite incapacity for civil employment as a storeman or store-person, the Tribunal does not conclude that at the day after retirement, the degree of the incapacity for the combined conditions of bilateral Achilles tendinitis with exostosis of os calcis and post traumatic stress disorder could amount to more than 30 per cent. Given all the evidence, the Tribunal considers that on the day after discharge, Mr Shingles had a 10 per cent incapacity for his bilateral Achilles tendinitis with exostosis of os calcis and a 15 per cent incapacity for his post traumatic stress disorder, providing a total incapacity of 25 per cent. In reaching this determination, the Tribunal considers that the feet and post traumatic stress disorder conditions must be considered together as their effects on the Applicant’s subsequent employment are inextricably linked.
78. Accordingly, in all of the circumstances and for the reasons expressed above, the Tribunal finds pursuant to section 43 of the Administrative Appeals Tribunal Act1975 that as the percentage of incapacity in relation to civil employment is less than 30 per cent and Mr Shingles is classified Class C, the decision under review is affirmed.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of S M Bullock, Presiding Member.
Signed: .....................................................................................
Associate
Dates of Hearing 27, 28, 29, 30 October 2003
Date of Decision 17 May 2004
Counsel for the Applicant Mr K L Duncombe of Counsel
Counsel for the Respondent Mr B Dubé of Counsel
Solicitor for the Respondent Ms R Shelley, Australian Government Solicitor
SCHEDULE 1
EXHIBITS
NUMBER DESCRIPTION DATE A1 Applicant’s Statement of Facts and Contentions 11 September 2003 A2 Report by Dr P Conrad, Orthopaedic Surgeon
Supplementary Reports by Dr P Conrad, Orthopaedic Surgeon6 April 2003
16 April 2003
9 May 2003A3 Report by Dr A Robertson, Forensic and General Psychiatrist 22 April 2003 A4 Supplementary Report by Dr A Robertson 21 May 2003 R1 Respondent’s Statement of Facts and Contentions 13 August 2003 R2 Bundle of Documents produced by Department of Veteran’s Affairs under Summons Various R3 Report by Professor A C McFarlane with title “Epidemiological Evidence About the Relationship between Post Traumatic Stress Disorder and Alcohol Abuse: The Nature of the Association”, Addictive Behaviours (1998), Vol 23, No. 6 pp813-825
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