Sullivan and Commonwealth Superannuation Corporation
[2012] AATA 774
•7 November 2012
[2012] AATA 774
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/4482
Re
Donald Sullivan
APPLICANT
And
Commonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey and Dr I Alexander
Date 7 November 2012 Place Sydney The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Senior Member J F Toohey and Dr I Alexander
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – applicant served with Australian peacekeeping force in the Sinai – discharged administratively – evidence that applicant suffered from post-traumatic stress disorder at time of discharge – whether applicant should be treated as if he was retired on ground of invalidity, or physical or mental incapacity to perform duties – decision under review affirmed
LEGISLATION
Defence Force Retirement and Death Benefits Act 1973 s 37
CASES
Re Defence Force Retirement and Death Benefits Authority v Douglas Harry Britt (1984) 57 ALR 199
X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN No 37
REASONS FOR DECISION
Senior Member J F Toohey and Dr I Alexander
7 November 2012
BACKGROUND
Mr Donald Sullivan enlisted as a clerical officer in the Royal Australian Air Force (RAAF) in 1978 and served three terms of engagement. During his last term, he spent four months with the Australian Contingent Multinational Force and Observers in the Sinai in Egypt. He declined the offer of a further term and was discharged administratively in June 1987.
In March 1988, Mr Sullivan was granted a pension at ten per cent of the General Rate with effect from 27 April 1987 on the ground of his defence-caused chronic lower back strain, chondromalacia patella and bilateral conjunctivitis.
In these proceedings, Mr Sullivan claims that, at the time he was discharged, grounds existed on which he could have been medically retired. In particular, he says he was incapable, because of his mental state, of performing his duties because of events that occurred during his service in the Sinai. He says he should be treated as if retired on the ground of physical or mental incapacity to perform his duties.
RELEVANT LEGISLATION
Section 37 of the Defence Force Retirement and Death Benefits Act1973 (the Act) confers on the respondent, (at the time of Mr Sullivan’s application the Defence Force Retirement and Death Benefits Authority, a body which has since become part of the Commonwealth Superannuation Corporation (CSC)), a discretion to treat a former contributing member as if he or she had been retired on the ground of invalidity even though that was not the case at the time.
Section 37 provides:
Where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duties but, after his retirement, the [Chief of Air Force or his or her delegate] informs the CSC that, at the time the member was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he may, for the purposes of this Act, be treated as if he had been retired on that ground.
Section 37 involves a two-step process. Firstly, it confers on the Chief of Air Force the function of determining whether grounds existed on which the member could have been retired on the ground of invalidity or of physical or mental incapacity to perform his or her duties. It then falls to the CSC (and, on review, the Tribunal) to decide whether, the member should be treated as if he or she had been retired on that ground.
The second decision involves the exercise of discretion, a pre-condition to the exercise of which is the relevant information from the Chief of Air Force: Re Defence Force Retirement and Death Benefits Authority v Douglas HarryBritt (1984) 57 ALR 199.
If it is determined that a person should be treated as if medically retired, a further determination is called for, being the classification of his or her percentage of incapacity in relation to civil employment. Section 30 of the Act provides for three classes of incapacity. Section 30(2) sets out the matters – and they are the only matters – to which regard may be had in determining the percentage degree of incapacity.
MR SULLIVAN’S APPLICATION
In March 2008, Mr Sullivan asked the Chief of Air Force to advise the Authority (as it then was) that, at the time he was retired, grounds existed on which he could have been retired on the ground of invalidity or of physical or mental incapacity to perform his duties.
Mr Sullivan’s initial request was declined and became the subject of proceedings in this Tribunal and then the Federal Court. The details of those proceedings are not important here. In the meantime, after receiving further medical evidence, in September 2009 the Chief of Air Force acceded to Mr Sullivan’s request and informed the Authority through his delegate to the effect that, in his view, s 37 grounds existed.
In December 2009, the Authority decided there was insufficient evidence to support a decision to treat Mr Sullivan as if he had been medically discharged. On 10 September 2010, the Authority affirmed its decision.
THE ISSUE
We have to decide whether we should exercise the discretion in s 37 of the Act to treat Mr Sullivan as if he had been retired on the ground of mental incapacity to perform his duties.
At issue, is whether, at the time of his discharge, Mr Sullivan was in fact incapable of performing his duties for the reasons in s 37. If we so decide, we then have to determine the classification of Mr Sullivan’s incapacity in relation to civil employment.
MR SULLIVAN’S EVIDENCE
Posting to the Sinai
Mr Sullivan was posted to the Sinai between 6 November 1985 and 2 April 1986. He gave evidence that, from shortly after his arrival, he was accommodated with a Corporal Niland who was clearly disturbed. Corporal Niland visibly agitated and nervous, and he would grind his teeth and groan at night and pace about. He later learned that Corporal Niland had received psychiatric treatment before being posted to the Sinai
Medical evidence before the Tribunal describes in detail the traumatic nature of Mr Sullivan’s childhood, which included witnessing his step-father’s extreme violence against his mother and his threats to kill the family. There is no doubt that Mr Sullivan was deeply affected and psychologically vulnerable. The medical evidence is considered further below.
In January 1986, Mr Sullivan was informed by his commanding officer that his father had been brutally murdered in the Philippines. He says his request to attend the funeral was refused on the ground that all personnel were essential to the successful withdrawal of the Australian contingent from Egypt by March 1986. A statement in evidence from Mr Sullivan’s supervising officer at the time suggests there were other reasons he was unable to attend the funeral but in the end nothing turns on this.
Mr Sullivan says no one talked to him again about his father’s death or offered him any support; they were only concerned about Corporal Niland.
Corporal Niland’s condition took a turn for the worse around the time that Mr Sullivan learned of his father’s murder. They continued to share a room until February 1986 when Corporal Niland was repatriated on medical grounds. In that time, Mr Sullivan says, Corporal Niland was extremely agitated, especially at night when he would pace the room. He could not sleep properly himself and was always on edge; he became nervous and agitated and started vomiting uncontrollably. His condition deteriorated and he asked several times to be moved but there was no alternative accommodation available.
Mr Sullivan’s account is supported, in general terms, by letters from former Flight Lieutenant D J Bloomer, his supervising officer in the Sinai, and from Corporal Niland himself, to Mr Sullivan’s treating psychiatrist, Dr Grahame Pohlen. Mr Bloomer’s comments about the effects on Mr Sullivan of his father’s death and Corporal Niland’s behaviour are considered below.
When his deployment to the Sinai ended, Mr Sullivan took leave before returning to Australia in June 1986 and serving at Amberley air base. In August 1986, he was offered a further term of engagement. He declined and requested a discharge at the end of his term on 26 June 1987. He took the period from early April 1987 until the end of his term as leave.
Evidence which goes to Mr Sullivan’s capacity to perform his duties at the time of his discharge is considered below.
Mr Sullivan’s employment history
Mr Sullivan left school at 15 and worked on cattle stations in the Northern Territory and Western Australia for several years. From 1969 he spent four years as a stock and station agent in New South Wales and Queensland. During that time he obtained his real estate and auctioneer’s ticket.
From about 1973, Mr Sullivan worked as a labourer in Whyalla and Port Kembla. In 1974 he worked in the furniture department in Grace Brothers in Sydney before moving to Darwin where he worked on reconstruction following Cyclone Tracy. He worked in other positions in and around Darwin before sailing to Broome in Western Australia. From there he went to Perth where he worked as a barman for a time before his brother suggested he join the RAAF. He enlisted in 1978.
On leaving the RAAF, Mr Sullivan sold real estate on commission in Queensland for about 18 months. He worked long hours until the stock market crash “stopped everything”. He then worked in hospitality roles on Hamilton Island, including six months as a staff accommodation manager. He was responsible for to up to 1,000 beds. Then the pilots’ strike happened, the resort owner experienced financial difficulties and there was conflict between different managers. Mr Sullivan found the position stressful and left.
After several months looking after a friend’s house in Melbourne, Mr Sullivan took over the running of the dining room and rooms at Mt Buffalo Chalet. After six months he bought a cafe at Beechworth which he ran for seven years. At time he employed up to nine staff. The business was reasonably successful until the closure of the geriatric and psychiatric hospital led to a downturn and he had to sell the business.
By 1998, Mr Sullivan was struggling psychologically and went to India where he spent 12 months in an ashram. Returning to Australia in 1999, he worked part time in a nephew’s hotel before being granted an intermediate pension in 2001 and then a totally and permanently incapacitated pension in 2003.
MEDICAL EVIDENCE
It is uncontroversial that the Chief of Air Force has informed the respondent that, at the time he was retired, grounds existed on which Mr Sullivan could have been retired on the ground of physical or mental incapacity to perform his duties.
The respondent accepts the opinion of Professor Alexander McFarlane, a psychiatrist who is currently Head of the University of Adelaide Centre for Traumatic Stress Studies and an internationally recognised expert in Post-Traumatic Stress Disorder (PTSD), including among the armed forces, that Mr Sullivan was suffering from PTSD at the time of his discharge. It does not necessarily follow, however, merely because a person suffers from a mental illness or a psychological condition, that he or she is incapable of performing his or her duties.
The evidence of Professor McFarlane and other doctors about Mr Sullivan’s psychological condition around the time of his discharge is summarised below. There are differences of opinion as to the nature of his condition but no argument that Mr Sullivan found the events in the Sinai most distressing and developed psychological symptoms at that time. The evidence about the effect of his condition on his capacity to perform his duties at that time is considered below from [39].
Professor McFarlane’s evidence
Professor McFarlane saw Mr Sullivan twice in 2012 for assessment. He prepared an extensive written report and gave oral evidence.
Professor McFarlane took a detailed history of Mr Sullivan’s family and work experiences before, during, and after, his service in the Sinai. He concluded that Mr Sullivan had a long history of psychiatric disorder from his childhood when he developed PTSD as a consequence of “the brutal treatment of his family and particularly his mother by his stepfather”.
Professor McFarlane concluded that the brutal stabbing death of Mr Sullivan’s father, coupled with the perceived threat that Corporal Niland’s behaviour presented, led to a recurrence of his childhood PTSD and the onset of a major depressive disorder. He noted that service records showed Mr Sullivan presented with various physical symptoms in his last year of service, which he thought were possible indicators of psychological problems.
Dr Gray’s evidence
Dr Curtis Gray, psychiatrist, prepared a report in February 2012 based on an examination of documents provided by the respondent. He prepared a further report in May 2012 after seeing Mr Sullivan in person. He took a detailed history and gave oral evidence.
Dr Gray formed the view that Mr Sullivan was genuinely – and understandably –distressed by the events in the Sinai. He thought Mr Sullivan developed “psychological symptoms but no reliably diagnosed psychiatric disorder in around 1987”. He agreed that distress may be a sign of a psychiatric disorder, but said more would be required before making that diagnosis; the distress would need to be in excess of what would be expected in the situation, and some impairment of functioning would be expected. In Mr Sullivan’s case, he could see no evidence of either.
Dr Gray thought there was “persuasive evidence” that Mr Sullivan developed “disabling and clinically significant anxiety and depression” at some point in the 1990s but he did not think he had a mental or psychiatric condition at the time of his discharge.
Dr Douglas’ report
Included in the documents on file is a report from March 1998 from Dr I H Douglas, a psychiatrist who assessed Mr Sullivan at the request of the Department of Veterans’ Affairs, apparently in connection with his application for a pension. Dr Douglas reported that Mr Sullivan “seems to have developed a generalised anxiety disorder following exposure to unpleasant circumstances in 1986”. He did not think Mr Sullivan had been exposed to “a catastrophe” and he did not have features of PTSD.
Dr Pohlen’s report
Mr Sullivan was referred to Dr Pohlen in 2000. He estimates he has seen Dr Pohlen some 170 times. Two reports by Dr Pohlen are before the Tribunal, one from 2003, the other from 2007. It is fair to say that the style and language of the later report are unusual and that it lacks the objectivity and impartiality one would expect from such a report.
Dr Pohlen reports that Mr Sullivan’s service in the Sinai aggravated his pre-existing PTSD. In that regard, he and Professor MacFarlane agree. His reports otherwise tell us nothing about Mr Sullivan’s capacity for work at the relevant time or since, and they do not assist us further.
WAS MR SULLIVAN CAPABLE OF PERFORMING HIS DUTIES AT THE TIME OF HIS DISCHARGE?
The first thing to observe is that what we have to determine is Mr Sullivan’s capacity to perform his (service) duties at the time of his discharge. Any question of his capacity to undertake civilian employment is reserved for consideration under s 30 of the Act which concerns the classification of any incapacity. We must first be satisfied that Mr Sullivan should be treated as if medically retired.
That said, events following Mr Sullivan’s discharge, including his capacity for civilian employment, may throw light on his capacity to perform his duties at the time of discharge: X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN No 37.
Evidence going to Mr Sullivan’s capacity to perform his duties in 1987 is found in his annual Airmen Evaluation Reports (AERs); the letter from Mr Bloomer to Dr Pohlen in 2001; a medical report at the time of his discharge; his claim for pension; and the evidence of Professor McFarlane and Dr Gray.
Mr Sullivan’s annual evaluation reports
Mr Sullivan’s AERs for 1985, 1986 and 1987 are before the Tribunal. The reports were completed by Mr Sullivan’s immediate supervisor and were signed by Mr Sullivan. They provide for ratings under general headings of professional ability, supervisory ability and personal qualities. In each case, Mr Sullivan was rated positively against all criteria.
By way of overall performance, Mr Sullivan was rated each year as follows:
·his AER in July 1985, for the period October 1984 to June 1985, assessed his overall performance as “As effective as most in peer group”;
·his AER in March 1986, for the period November 1985 to March 1986, while he was in the Sinai, assessed his overall performance as “Moderately better than most in peer group”, which was the third highest of seven possible ratings;
·his final AER, for the period 1 June 1986 to 30 March 1987, assessed his overall performance as “One of the highest performers in the group”, which was the second highest of seven possible ratings.
The AER form includes a section on “Counselling”, which is defined as “any advice given by your supervisor as to how you are performing or how you can improve your performance or how you can overcome shortcomings”. In his AER for the period he was in the Sinai, Mr Sullivan ticked “Yes” to the statements “I sought counselling from my supervisor during the reporting period” and “I received counselling from my supervisor during the report period”. The form contains no further information, and no evidence was led about the reasons for counselling, what form it took or how often it occurred.
Mr Bloomer’s letter to Dr Pohlen
Mr Bloomer wrote to Dr Pohlen on 30 July 2001 in response to a request from Mr Sullivan to state what he recalled of events in the Sinai. Mr Bloomer wrote that he recalled being notified of the murder of Mr Sullivan’s father while Mr Sullivan was on leave in Israel and that he was unable to attend the funeral because of the delay in informing him of his father’s death. Mr Bloomer recalled that he and another officer felt Mr Sullivan was “coping well” and that the incident “did not seem to affect his work or disposition”.
Mr Bloomer also recalled that Corporal Niland was released from sick quarters and returned to the room he shared with Mr Sullivan on the day he learned of his father’s death. He recalled that, that night, there was some disturbance involving the two men and Corporal Niland was readmitted to sick quarters the next day. He recalled that, although he and another officer thought Mr Sullivan was coping well, they decided to send him on leave for a couple of days, and Corporal Niland was repatriated.
Mr Bloomer wrote that Mr Sullivan returned from leave and “showed no signs of problems”. He acknowledged that the unit was very busy and he might have missed signs of problems if they were not really obvious or affecting Mr Sullivan’s work performance. However, he said, Mr Sullivan “along with everyone else, worked extremely hard and long hours to achieve the contingent withdrawal. I suggest we would not have achieved it without his professional expertise and commitment”.
Medical examination on discharge
The record of Mr Sullivan’s medical examination on discharge conducted on 30 March 1987 shows he had “significant problems”, being pain in his knees and lower back and conjunctivitis. It contains no reference to any psychological problems.
Mr Sullivan’s claim for pension
In his claim for a pension lodged in July 1987, Mr Sullivan listed his disabilities as “back pain, knees & eyes”. In that part of the claim form that asked whether he had any other accidents, injuries or illnesses during service, he listed “fever; colds; hepatitis; cut eye while in Sinai; stood on a nail; sore neck”. He did not refer to any psychological problem.
A medical assessment in December 1987 in connection with Mr Sullivan’s claim also listed his disabilities as “back pain; knees & eyes”. Parts of the assessment form concerning his personal relationships and home, work and leisure activities, were completed by Mr Sullivan. He recorded that, at that time, he was working 11 to 12 hours a day, six to seven days a week, selling real estate. His other answers on the form suggested that, within the limitations of his busy work life, he had a social life and engaged in most usual activities. Under personal history, the doctor noted: “No sport – too busy with work”. Although the form provided a box for “Mental disorders”, there is nothing in the assessment to suggest any psychological condition.
Giving evidence before the Tribunal, Mr Sullivan was asked why his claim for pension in 1987 made no reference any psychological condition. He said he did not realise at the time that he had psychological problems and it was not until many years later that he read a list of PTSD-related symptoms and made the connection between his service and his emotional state. When questioned further, Mr Sullivan said he did not disclose the problems he was having during his time in the Sinai because he did not want to be seen as “a nutter” when he was discharged.
Mr Sullivan’s statements are difficult to reconcile. Nevertheless, we found him to be a genuine person. We accept that he was disturbed by events in the Sinai and came to feel deeply aggrieved by what he perceived to be a lack of concern for his welfare, especially in comparison with Corporal Niland. It is another matter whether he was incapable of performing his duties at the relevant time.
Professor McFarlane’s evidence
Professor McFarlane gave evidence that Mr Sullivan’s positive evaluation reports around the time of his discharge did not necessarily indicate his capacity to carry out his duties at the time. He gave evidence that people with PTSD commonly have to make a greater effort in order to overcome the difficulties their condition causes them, and the number of hours a person works is not a reliable measure of effectiveness.
Professor McFarlane agreed that he could only speculate as to the effect of PTSD on Mr Sullivan. He conceded that Mr Sullivan’s real estate work could have failed because his PTSD was catching up with him or, equally, because of the stock market crash. He also agreed that many people are able to work with psychological or psychiatric disorders.
Dr Gray’s evidence
Dr Gray gave evidence that, despite Mr Sullivan’s psychological symptoms, he could not find any evidence that his capacity to perform his duties was impaired at the time of his discharge.
Dr Gray thought that, over the ten years after his discharge, Mr Sullivan had to contend with very difficult circumstances but he could find no evidence of impaired functioning. He thought the fact that Mr Sullivan went on to work on Hamilton Island after his real estate work ended, and later to other work, showed he was adaptable and had a degree of resilience despite his psychological symptoms. He thought that, some time during the 1990s, Mr Sullivan’s symptoms worsened after he had experienced a number of other significant stressors, to the point that he was no longer able to work.
Consideration
The contemporaneous assessments of Mr Sullivan’s performance in the three years leading up to his discharge are persuasive evidence of his capacity to perform his duties at the relevant time.
For Mr Sullivan it was submitted that the evaluation reports should be given little weight because they are RAAF documents, and not Mr Sullivan’s. We do not agree. Mr Sullivan signed each evaluation report, and he has not suggested to us that he disagreed with their contents. There is nothing to suggest he signed them under duress or that they reflect anything other than his performance at the time. There was ample scope in the evaluation forms for Mr Sullivan’s supervising officer to indicate if his performance was wanting in some respect but his assessments were consistently positive. Nothing in them suggests any impairment of functioning. In fact, he was rated most highly for the period after he returned from the Sinai and immediately before his discharge.
We accept that Mr Sullivan felt aggrieved by what he perceived to be a lack of support around the time of his father’s death and the perceived more sympathetic treatment of Corporal Niland. Mr Bloomer acknowledged that he might have missed signs of problems given everything that was happening at the time. It is relevant, however, that he wrote that he might have missed signs if Mr Sullivan’s problems “were not really obvious or affecting his work performance”. Nothing in his letter suggests that Mr Sullivan’s capacity to perform his duties was in fact affected. To the contrary, Mr Bloomer acknowledges the contribution of Mr Sullivan’s hard work, long hours and commitment to the contingent’s withdrawal.
Although, at this point, we are considering Mr Sullivan’s capacity to perform his service duties – and not his capacity to perform civilian duties – it is relevant that he went more or less straight from service to working long hours in real estate, and from there to other positions which he held for varying periods over a number of years. Dr Gray thought he would have had increasing difficulties over the years but Mr Sullivan’s employment record following his discharge, at least for several years, are consistent with his AERs and strongly suggest those assessments of his capacity were correct. The fact that Mr Sullivan was offered a further term of engagement following his return from the Sinai is further evidence that he was considered capable of performing his duties.
Neither Professor McFarlane nor Dr Gray concluded that Mr Sullivan was incapable of performing his duties at the time of his discharge. We accept Professor McFarlane’s evidence that a person with PTSD might work long hours to compensate for impaired functioning, and that long hours do not necessarily indicate effective performance. It is another matter, however, whether Mr Sullivan was unable to perform his duties at the relevant time. In our view, the evidence does not support that conclusion.
It is particularly relevant that Mr Sullivan has not given evidence of any duties he was unable to perform, or even that he had had difficulty performing, at or around the time he was discharged.
CONCLUSION
Taking into account all of the evidence before us, we are not satisfied that any psychological condition that Mr Sullivan was suffering at the time of his discharge in 1987 led to any incapacity to perform his duties. We are not satisfied that he should be treated as if he were retired on that ground.
As we are not satisfied that Mr Sullivan should be treated as if he were retired on the ground of mental incapacity to perform his duties, the question of the classification of any incapacity does not arise.
We affirm the decision under review.
I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey and Dr I Alexander. .............[sgd]...........................................................
Associate
Dated 7 November 2012
Date(s) of hearing 23 and 24 October 2012 Counsel for the Applicant Dr J Berwick Solicitors for the Applicant Craddock Murray Neumann Lawyers Solicitors for the Respondent Australian Government Solicitor
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