Walker and Defence Force Retirement and Death Benefits Authority
[2000] AATA 817
•13 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 817
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1172
GENERAL ADMINISTRATIVE DIVISION )
Re WAYNE WALKER
Applicant
And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Commodore B G Gibbs AM RAN, Senior Member
Date13 September 2000
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides: a) As of 11 January 1982, the Applicant's incapacity in relation to appropriate kinds of civil employment was 60 per cent or more, resulting in a Class A classification under section 30 of the Act; and b) In accordance with section 34 of the Act, on and from 10 December 1982, the Applicant's incapacity in relation to appropriate kinds of civil employment was nil.
..............................................
Senior Member
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – classification for invalidity benefits – incapacity in relation to civilian employment – physical or mental impairment at time of retirement.
Defence Force Retirement and Death Benefits Act 1973, ss 30, 34, 37, 99
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Defence Force Retirement and Death Benefits Authority v O'Fee, unreported Federal Court, 6 June 1985
Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
REASONS FOR DECISION
Mr M J Sassella Commodore B G Gibbs
APPLICATION
This is an application by Wayne Walker ("the Applicant") for review of a decision of the defence Force Retirement and Death Benefits Authority ("the Respondent") dated 13 March 1998 in respect of Mr Walker's entitlement to invalidity benefit. That decision affirmed the decision of a delegate of the Respondent dated 22 April 1997 that the percentage of the Applicant's incapacity was ten per cent and that he be classified Class C in respect of his incapacity with effect from 12 January 1982.
Mr Walker was represented at the hearing of his application by his wife, Mrs Lynne Walker, and the Respondent was represented by Mr Ron Whithear of counsel.
On 12 August 1996 the Director General Personnel Support and Conditions – Army, in response to representations by the Applicant including those dated 13 December 1995 (Document AH/170), wrote to the Respondent (Document BS) stating that it had been determined under section 37 of the Defence Force Retirement and Death Benefits Act 1973 ("the Act") that the Applicant could have been discharged from the army medically unfit. He had in fact been discharged on 11 January 1982 "not suited to be a soldier".
On 9 September 1996 the Assistant Chief of General Staff of the Army determined (Document CA) that at the time of the Applicant's discharge from the army, grounds existed on which he could have been retired on invalidity grounds.
On 11 April 1997 the Respondent referred the matter to a delegate (Document CA) to have the Applicant classified under section 30 of the Act. The Applicant's rate of pension would be affected by this classification.
On 22 April 1997 the Respondent's delegate determined (Document C) that the Applicant's incapacity in relation to civil employment, specifically in relation to the fields of trades assistant (mechanic) and service station attendant was ten per cent. The Applicant was therefore classified as a Class C member with effect from 12 January 1982.
On 19 June 1997 the Applicant requested a reconsideration of this decision under section 99(4) of the Act (Document BC). He considered that his classification should be Class A or Class B. This would result in a superior financial outcome for him.
On 13 March 1998 the Respondent affirmed (Document B and Document CE) the decision of 22 April 1997. This was notified to the Applicant on 26 March 1998 (Document BM) and reasons were provided on 7 April 1998 (Document BN).
On 2 August 1999 the Applicant lodged an application for review by the Tribunal (Document A) under section 99(6) of the Act. This was dated 29 July 1999.
On 25 August 1999 the Tribunal issued a direction that the time for the lodging of an application by the Applicant for review of a decision made by the Respondent be extended to 2 August 1999.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (TD1) and the following exhibits:
Exhibit No Description Date
A1 A2 A3 A4 A5 A6 A7 A8 A9 A10 A11 R1 R2 R3 R4 R5 Booklet on "Posttraumatic Stress Disorder (PTSD) and War-Related Stress" produced by the Department of Veterans' Affairs Submission from Lynne Walker Australian Defence Force Minute Statement of Nancy Meadows Statement of R J Thorburn Statement of Ronald Glen Walker Statement of Paul McGrath Statement of Harold Belling Statement of Maureen Williams Statement of Chris Hawkins Statement of Bronwynne McMahon Statement of Hugh McLean "Comment on Wayne Roydon Walker" by V R Travis Statement of Lt Col E J Andrews Chapter 14 – Pulheems Medical Classification System Bundle of documents relating to PTSD Letter from Central Army Records and Certificate of Army Trade Test Various photographs of the Applicant Applicant's statement in response to the Respondent's Statement of Facts and Contentions Reference from Bob McLean for Lynne Walker Report of Dr Mason; and Letter from the Australian Government Solicitor to Dr Mason. Respondent's Amended Statement of Facts and Contentions Summonsed documents from Dr G Davies Summonsed documents from Dr Heiner Additional army records 1999 10 March 2000 5 December 1996 13 July 1998 21 July 1998 undated 22 July 1998 24 July 1998 undated undated 30 November 1978 undated undated 29 June 1998 undated undated 20 August 1984 undated undated 27 June 1988 4 January 2000 21 December 1999 7 March 2000 undated undated August 1996
COMPLIANCE WITH PRACTICE DIRECTION
The Tribunal notes that, in preparing the statement required by section 37(1) of the Administrative Appeals Tribunal Act 1975, the Respondent did not comply with the requirements set out in the Tribunal's document, "Section 37 Practice Direction – Procedures Relating to Section 37 of the Administrative Appeals Tribunal Act". The Practice Direction requires, amongst other things, that the section 37 statement be prepared as follows:
"…
The section 37 documents shall be arranged and fastened as follows:(1) the first document will be the application for review;
(2)the second document will be the section 37 statement and reasons for decision;
(3)thereafter will follow all other documents, including documents referred to in the section 37 statement and reasons, in chronological order from the earliest to the latest date. These must include a copy of the decision under review if made in writing (if not made in writing, a copy of a document which recorded the decision) and a copy of any document notifying the decision and a copy of any reconsideration.
The statement and documents must be accompanied by an index in which a brief description of each document and the date of each document in its sequence is recorded. Each document should be identified with an exhibit number commencing with the application for review as "T1", succeeding documents bearing "T" numbers in sequence. Each page will be numbered and the pagination will be set out in the index."
In the present case the Respondent did not present the documents in chronological order. The Respondent did not allocate each document a "T" number. Instead, the Respondent presented the document in separated chronological sets. Each set collected documents from a common source or common topic, for example medical documents, "Mr Walker's correspondence with this Office & Information from Mr Walker's former employers" and "Other Material Documents". Allied to this was the use of a complicated system for numbering the documents. The Tribunal found that this departure from the Practice Direction caused inefficiency and some confusion in considering the application at all stages.
LEGISLATION
Section 30 of the Act provides, as relevant:
"30 (1) Where a member of the scheme…is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:
Percentage of Incapacity Class
60% or more………………………………………………………….. A
30% or more but less than 60%…………………………………….. B
Less than 30%………………………………………………………… C
(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."
Section 34 of the Act provides:
"34. (1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.
(1A) In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a recipient member, 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 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.
(1B) In subsection (1A), "prescribed physical or mental impairment", in relation to a recipient member, means:
(a)a physical or mental impairment of the recipient member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the recipient member was retired, whether or not that impairment has changed, for better or worse, since that retirement; or
(b)any other physical or mental impairment of the recipient member causally connected with a physical or mental impairment referred to in paragraph (a).
(2) Where a recipient member is reclassified under this section, the Authority shall specify the date from which the reclassification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly.
(3) Where the Authority reclassifies a recipient member under this section, the date specified by the Authority as the date from which the reclassification has effect shall not be a date earlier than the date on which the Authority reclassifies the member unless:
(a)the member is reclassified as Class A or, having been classified as Class C, is reclassified as Class B; and
(b)the Authority is satisfied that special circumstances exist that justify an earlier date being so specified.
(4) If, upon the reclassification of a recipient member as Class C, he would, but for this subsection, be entitled to benefit in accordance with subsection 32(2), he is entitled to that benefit only to the extent that the amount of that benefit exceeds the sum of the payments of invalidity pay received by him.
(5) In this section, "recipient member" means a member of the scheme who is entitled to invalidity pay and includes a member of the scheme who:
(a)is classified as Class C by reason of having been reclassified (whether before or after the commencement of this subsection) under subsection(1); and
(b) is not, after being so reclassified, entitled to invalidity pay;
but does not include a member of the scheme who is retired after the commencement of this subsection and, on retirement, is classified as Class C under section 30."
Section 37 of the Act provides:
"37. 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 Naval Staff, the Chief of the General Staff or the Chief of the Air Staff or a person authorised in writing by the Chief of Naval Staff, the Chief of the General Staff or the Chief of the Air Staff, as the case requires, informs the Authority that, at the time the member was retired, grounds existed on which he could have been retired on the grounds 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 99 of the Act provides:
"99 (1) In this section:
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975;
"decision of the Authority" means a decision of the Authority, or a delegate of the Authority, under this Act, under the Defence Forces Retirement Benefits Act 1948 or that Act as amended and in force from time to time, or under any other Act that relates to retirement benefits for members of the Defence Force and modifies or affects the provisions of the Defence Forces Retirement Benefits Act 1948 of that Act as amended and in force from time to time.(2) A person who is affected by a decision of the Authority and is dissatisfied with the decision may, by notice in writing given to the Authority, within a period of 30 days after the date on which the decision first comes to the notice of the person, or within such further period as the Authority allows, request the Authority to reconsider the decision.
(3) There shall be set out in the request the ground on which the request is made.
(4) Upon receipt of the request the Authority shall reconsider the decision and may either confirm or vary the decision in such manner as it thinks fit.
(5) The Authority shall, by notice in writing to the person who made the request, inform the person of the result of its reconsideration of the decision.
(6) Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Authority, being decisions that have been confirmed or varied under subsection (4)."
ISSUES
There are therefore a number of issues for consideration in this matter:
1) the Applicant's vocational, trade and professional skills, qualifications and experience pre-service, during service and post-service;
2) the kinds of employment a person with the skills, qualifications and experience of the Applicant could reasonably undertake;
3) the Applicant's invalidity or physical or mental incapacity at the time of his retirement;
4) the physical or mental impairment which caused the Applicant's invalidity or incapacity at the time of his retirement;
5) the degree to which the determined impairment diminished the Applicant's capacity to undertake the kinds of civil employment referred to above.
DOCUMENTARY EVIDENCE
There is a considerable quantity of material in the documents attached to the section 37 statement in this case and the Tribunal considers that something should be said about any possibly relevant contents of those documents that do not receive coverage later in these reasons for decision.
Document E is the army medical report dated 22 February 1979 from an examination when Mr Walker enlisted in the army. The medical officer noted facial mannerisms of expression in connection with "nervous system" and "head, face, scalp".
Document L is an army medical report dated 1 December 1881 relating in the main to observations stemming from his wrist injury. Reference is made to the discharge recommendation on the basis of asocial personality.
Document M is a request to the army dated 9 January 1990 from Military Compensation authorities for the Applicant's medical summaries and documents. It refers to Mr Walker's "social and psychological problems from sexual assault".
Document N is a report by Dr D Macaulay, rheumatologist, dated 21 February 1994. It deals only with the Applicant's orthopaedic problems.
Document P is a psychological assessment of the Applicant dated 2 July 1994 written by Mr A Weaver, psychologist, and Ms L Pearson, postgraduate clinical student. It was prepared in the context of a compensation claim. It records evidence from Mr and Mrs Walker about the Applicant's reactions to the sexual assault he experienced in the army and his subsequent behavioural problems. These are fully covered in other evidence before the Tribunal.
Document U is a report dated 19 February 1996 by Dr V McCartney prepared for the Department of Social Security. It reports that the Applicant has conditions of post-traumatic stress disorder (PTSD), arthralgia arthrodosis of right wrist and hypertension.
Document V is a request by the Respondent dated 16 October 1996 addressed to Ms S Scouller, a rehabilitation counsellor, for a report on the Applicant.
Document W is a request by the Respondent dated 16 October 1996 addressed to Dr J Heiner, psychiatrist, for a report on the Applicant.
Document Y/101-107 is a report dated 9 December 1996 by Ms S Scouller, rehabilitation counsellor. Ms Scouller found that Mr Walker had depression and PTSD. She found that he had been unsuccessful in finding civilian employment. She considered that this could well be linked to the PTSD on the basis of other cases she had considered. Ms Scouller was apparently unaware of Mr Walker's employment history with Mr McLean as she does not mention it. This would cast some doubt on the accuracy of her assessment. She ascertained that Mr Walker's preferred employment would be mechanical repair work on, and restoration of, small engines.
Document Z is a letter dated 22 May 1997 from Mr A Weaver to Mr Walker clarifying aspects of his earlier report in Document P.
Document AA is a certificate dated 11 June 1997 by Dr L Simes to the effect that Mr Walker, based on records from 1973 onwards, had no childhood joint pain or abnormality.
Document AB is a certificate dated 20 June 1997 by Dr V McCartney, general practitioner, to the effect that Mr Walker, based on his symptoms at the time, in 1981 suffered from PTSD and it is unlikely that he would have been fit for any productive work at the time of his discharge from the army.
Document AC is a report dated 10 July 1997 by Ms S Scouller, rehabilitation counsellor, to the effect that the Commonwealth Rehabilitation Service (CRS) had been unsuccessful in assisting Mr Walker to return to employment because of Mr Walker's mental state. He had problems of concentration difficulty, tiredness, lethargy, outbursts of anger and low self-esteem. His work history is described as fragmented and of limited duration due to his inability to cope. This seems to overlook the lengthy periods during which Mr Walker worked for Mr McLean.
Document AD is a letter dated 11 July 1997 from Dr G R W Davies to Mr Walker explaining what material he had at hand when preparing the report in Document R and another report apparently not included in these documents.
Document AE is a request dated 20 November 1997 by the Respondent to Dr V McCartney seeking information on Mr Walker's medical condition as at 11 January 1982.
Document AF is a letter dated 10 December 1997 from Dr McCartney in response to the request in Document AE. The Applicant's medical records were silent between 1978 and 1986. Dr McCartney provided her assessment which replicates her views in Document AB.
Documents AG-AH/140 are administrative documents such as authorities for the release of Mr Walker's medical information.
Document AH/141 is a decision of the Administrative Appeals Tribunal dated 1 June 1995 relating to Mr Walker's claim for compensation from the Department of Defence.
Document AH/141 is an internal Department of Defence document dated 20 December 1995 recommending that Mr Walker's status under the Act be reviewed.
Document AH/145 is a decision dated 20 December 1996 within the Department of Defence Discharge Authority. The decision was that the reason for Mr Walker's discharge would not be changed.
Document AH/156 is an undated statement by Ms M Williams who saw Mr Walker in June or early July 1985 at the delicatessen counter where she and Mrs Walker worked. He seemed confused, lost and extremely agitated. He wanted Mrs Walker but was not sure where she was. He seemed disoriented and not as Ms Williams had previously known him. Mrs Walker annotated this statement saying that it indicated some of the effects working could have on the Applicant.
Document AH/157 is a statement dated 9 September 1994 by Ms B McMahon. She had known Mr Walker since the mid-1970s when he worked for Ms McMahon and her husband in their supermarket after school. She saw him when he came home after being assaulted in the army and he was bitter, angry, confused and disillusioned about life and what had happened to him. She and her husband contacted Major Andrews who gave Mr Walker accommodation in his house. Major Andrews was called as a witness in the hearing.
Document AH/158 is a statement dated 29 February 1996 by a former co-worker who saw Mr Walker at work for about a year. He or she saw a considerable deterioration in Mr Walker's capacity to deal with employment as the year progressed.
Document AH/160 is a set of notes giving a medical and work history based on a clinical examination apparently by Commonwealth Medical Officer following on from Dr McCartney's assessment in Document U.
Document AH/162 is a letter dated 12 February 1996 from the Department of Social Security rejecting Mr Walker's claim for sickness allowance on the basis that his PTSD is a permanent condition as certified by Dr McCartney and sickness allowance is payable only in respect of temporary conditions.
Documents AH/168 and AH/169 are letters dated 22 March 1994 and 23 November 1995 from the Minister for Veterans' Affairs and the Minister for Defence Science and Personnel, respectively, in response to Ministerial representations on Mr Walker's behalf by his local Member.
Document AH/170 is a Ministerial representation dated 13 December 1995 by Mrs Walker to the Minister for Defence Science and Personnel.
Documents AH/173-189 are Mr Walker's service documents. Material of relevance in these documents is routine except for Documents AH/184-186 which record Mr Walker's $10 fine for going absent without leave (AWOL) in July 1981.
Documents AH/199-200 and 205-208 relate to the sexual assault perpetrated on the Applicant.
Documents AH/201-204 and 209-210 are the documents authorising Mr Walker's discharge from the army.
Document AH/211 is a letter dated 9 January 1990 from the Department of Defence to Mr Walker's legal representative stating that there was no evidence of the sexual assault alleged to have occurred on 10 June 1981. (The correct date was more likely 7 June 1981.)
Document AI is a letter dated 19 November 1996 from Comsuper to the Applicant seeking information.
Document AJ is the response dated 4 December 1996 to Document AI.
Document AK is further material provided to Comsuper in response to Document AI.
Documents AL-AO are letters dated 9 December 1996 to Mr Walker's former employers seeking information about his employment.
Document AS is a letter dated 12 March 1997 from a solicitor acting for the Applicant to Comsuper asking that Mr Walker's claims be referred to the Board of Trustees.
Document AT is a letter dated 31 March 1997 from Mr Walker to Comsuper explaining his frustration and apologising for some of the difficulty involved in providing information.
Documents AV/241 and AY are letters dated 23 April 1997 and 13 May 1997 from Comsuper to Mr Walker advising him that he has been given a Class C classification under section 30 of the Act and that the impairment causing his retirement was depression. The civil employment seen as relevant for Mr Walker was trades assistant (mechanic) and service station attendant. Document AY details the documentary evidence taken into account.
Document AV/244 is a letter dated 5 May 1997 from Mr Walker's solicitor to Comsuper seeking a progress report. This was answered on 8 May 1997 in Document AX.
Document AZ is a letter dated 20 May 1997 from Comsuper to Mr Walker. It is a covering letter to the provision of the minute including the formal reasons for the decision as to Mr Walker's classification under section 30 of the Act.
Document BA is a record of an interview attended at Comsuper by Mr and Mrs Walker. The contents cover much of the ground traversed in the hearing before the tribunal. It suggests that Mr McLean did sack Mr Walker at one stage in order to employ his brother-in-law whom Mr Walker did not get along with. However, this was not the import of Mr Walker's and Mr McLean's oral evidence before the Tribunal. The Tribunal accepts the sworn material received in oral evidence to this unsworn, hearsay evidence.
Document BB is a letter dated 13 June 1997 from Mr Walker's solicitor to Comsuper seeking a progress report. Document BD is a response dated 25 June 1997 stating that Mr Walker had advised that the solicitor no longer was acting for him. The letter mentioned that a decision had been taken on 22 April 1997.
Document BE is a letter dated 25 June 1997 from Comsuper to the Applicant acknowledging receipt of the request for a review in Document BC.
Document BF is a letter dated 4 August 1997 from Mr Walker to Comsuper seeking further information about the reasons for the delegate's decision. In Document BG, dated 14 August 1997, Comsuper advises that it has referred the query to the Department of Defence. Document CD dated 14 August 1997 is the referral to the Department of Defence.
Document BH dated 22 August 1997 is the Applicant's material in support of his request for a review of the delegate's decision. The contents of this material, and the attached documents, are otherwise before the Tribunal except for Document BH/290 (Mr Walker's certificate of service), Document BH/291 (material on PTSD) and BH/292 (taxation documents for 1984-1985).
Document BI is an authority dated 29 October 1997 signed by Mr Walker authorising the release of medical documents to Comsuper.
Document BJ is a letter dated 14 November 1997 from Mr Walker to Comsuper seeking information to interpret the decision under review.
Document BK is a record dated 1 December 1997 of a telephone conversation between a Comsuper officer and Mr R McLean, a former employer of Mr Walker. It queries some discrepancies in dates when Mr Walker worked for Mr McLean as recounted by each of them. Mr McLean agreed that he was acting on recall and he could have been wrong. He stated also that he did not believe he made any allowances for Mr Walker while he was in Mr McLean's employ. He had not been entirely aware of Mr Walker's personal circumstances at the time.
Document BL is a record dated 12 February 1998 of a telephone conversation between a Comsuper officer and Mr Walker. He said that he had been awarded a disability pension by the Repatriation Commission at 60 per cent of the general rate. He discussed some missing orthopaedic medical evidence and his pre-service work and education history.
Document BO is a letter dated 11 May 1999 from the Applicant to the Respondent. The Applicant's request for review had resulted in the original decision being affirmed. He now sought information as to how to have the decision further reviewed. In Document BP dated 6 July 1999 the response explained how the medical evidence adduced by Mr Walker had been deficient and indicated that the Applicant could appeal to the Tribunal.
Document BQ is a determination dated 12 September 1988 by the Repatriation Commission rejecting Mr Walker's claim for a disability pension.
Document BR is a letter dated 31 March 1990 from the Department of Defence to the Defence Compensation Section regarding the Applicant's medical conditions for the purposes of the Safety, Rehabilitation and Compensation Act 1988.
Document BT is a letter dated 12 September 1996 from the Department of Defence to Comsuper in which it states that the sender cannot comment on any counselling Mr Walker may have had relating to his reason for discharge.
Document BU is a letter dated 18 September 1996 from the Department of Defence to Comsuper stating that Mr Walker was a qualified motor mechanic and that appeared to be the only appropriate employment.
Document BV is a letter dated 16 October 1996 from Comsuper to the Department of Defence seeking information as to the contents of any compensation related documents concerning Mr Walker and held by the recipient. This request was answered in Document BZ dated 7 January 1997.
Document BX is a letter dated 26 November 1996 from Comsuper to the Department of Defence providing a chronology of events concerning Mr Walker's claim for invalidity benefits under the Act.
Document CB is a record generated on 15 May 1997 showing the Applicant's Defence Force Retirement and Death Benefits contributor record.
Document CC is a record of the benefit due and payable to Mr Walker
Documents CF-CJ are procedural documents relating to this application before the Tribunal.
There were a number of exhibits before the tribunal. Again, many of these are discussed in the reasons below. However, several do not receive detailed consideration. These are as follows:
Exhibit A1 is a book issued by the Department of Veterans' Affairs, Post-traumatic Stress Disorder or Related Stress Information for Veterans and their Families. The Tribunal noted the contents of this book but relied in the main on the evidence given by the medical experts who appeared before the Tribunal.
Exhibit A3 is a set of referee reports relating to Mr Walker. They cover similar ground to, and corroborate the evidence of, Mrs Walker as regards Mr Walker's personality change after the assault that occurred in the army.
Exhibit A6 is material on the Defence Force medical classification system, PULHEEMS. This material is of use in understanding the basis for the army's decision to discharge Mr Walker.
Exhibit A7 is material on PTSD published by the Vietnam Veterans' Association. Its usefulness to the Tribunal was similar to that of Exhibit A1.
Exhibit A8 is the Applicant's Certificate of Army Trade Test. It shows proficiency in servicing of motor vehicles.
Exhibit A9 consists of photographs of the Applicant in his home environment.
Exhibit A10 is the Applicant's Statement of Facts and Contentions.
Exhibit R2 is the Respondent's Amended Statement of Facts and Contentions and list of authorities.
Exhibit R5 is material from Army records dating from 1996 which is consistent with other material in the section 37 statement.
FACTS
From the Applicant's evidence at the hearing, and from the documents before the Tribunal, the Tribunal considers the following to be the basic chronology in this matter:
Pre-service history
The Applicant was born on 28 November 1960.
After leaving school at age 16 the Applicant worked for three months as a driveway attendant per medium of a government employment scheme of the time known as the REDS scheme. He worked without remuneration from time to time in a sawmill when not otherwise employed. He worked for three months at a Nowra chemical company while still aged 16 or 17.
Service history
He enlisted in the army at Kapooka at age 18 on 24 April 1979. He trained on the adult trade training scheme at Bandiana near Wodonga as a trainee tradesman from 24 July 1979. The training involved 15 months of theory before he qualified as a motor mechanic on 10 October 1980. He was posted to a unit where he commenced work as a motor mechanic in the expectation of staying there for six years in order to gain a full qualification.
The Applicant in evidence said that he did little practical work because of a motorcycle accident. He worked in 1980-1981 near Wodonga, then at Ingleburn and Queensland (from January 1981) on Land Rovers and Datsun 180B vehicles. This involved basic servicing.
While serving and working in Queensland several other servicemen indecently assaulted him on 7 June 1981 (Document AH/205-208). He reported this to the police and army authorities. He was accommodated at the home of Colonel Andrews for about five days following the assault. He was then sent on leave. After a month he returned to find that most of his kit had been stolen. In addition he was ostracised by his army colleagues. The Applicant found this all too much and went AWOL back home to New South Wales. He soon returned to Queensland where the army fined him $10 for being AWOL. He received a new posting but he was teased about the assault. He saw a doctor and asked to see a psychiatrist. He was transferred back to Bandiana in August 1981 at his own request.
Documents J and K are reports by Dr J L Mason, a psychiatrist, dated 19 and 18 November 1981, respectively. Dr Mason recommended that the Applicant be discharged as psychologically unsuitable for army service. Amongst the reasons he cited aggression towards formal authority – "resents being told what to do"; showed an abnormal fear of field exercise activity; drives cars at dangerously high speeds; personality disorder with strong hostility and anti-authority traits. No reference was made to the sexual assault.
Post-service history
The Applicant was discharged on 11 January 1982 as "not suited to be a soldier". He had served two years, 263 days including ten days of "non-effective service" from 13 July 1981 to 22 July 1981 when he was AWOL. The Applicant testified that he had no qualifications when he left the army. He could have been a service station attendant or labourer but for a wrist problem stemming from the motorcycle accident. He could work as a trades assistant which involved working on and with car parts but not on cars themselves. He had no documents from the army to use in searching for work. He had no work between February 1982 and December 1982.
On 10 December 1982 the Applicant commenced work with Mr McLean as a trades assistant (Document BH) through a government work scheme and with his mother's intervention. In his oral evidence the Applicant said he was not looking for work at the time. His mother had ejected him from home and installed him in a flat at Shoalhaven Heads. He said he had either to work or go hungry. The job was at Shoalhaven Engine Reconditioning Pty Ltd. He stayed in that job until 21 December 1984. The work involved reconditioning cylinder heads. As a worker the Applicant said he was inclined to forgetfulness and Mr McLean would not let him use the more sophisticated machinery.
Late in 1984 the Applicant qualified as a licensed motor vehicle mechanic.
The Applicant then worked from 14 December 1984 until 18 January 1985 at Bruce East and Sons Pty Ltd who ran East's Beach Caravan Park at Kiama (Document BH). He was a casual cleaner for four hours a night. He resigned from this job.
The Applicant then worked as a truck driver for McMahons Transport in Batemans Bay from 11 February 1985 until 16 February 1985 (Document BH).
The Applicant worked as a mechanic for Lennock Motors in Queanbeyan from 13 May 1985 to 19 June 1985 (Document BH). He resigned because he did not think they let him do his job properly.
The Applicant worked as a mechanic at QIM Engine Reconditioning, Queanbeyan, for three days in June 1985 (Document BH). He again resigned because he did not like the work they did.
The Applicant then worked as a delivery truck driver for Instant Office Furniture, Fyshwick, and ACT, from 4 July 1985 to 4 October 1985 (Document BH). He resigned because his employer was short tempered.
The Applicant was then self-employed from 4 November 1985 until 9 September 1986 as an owner-driver of a truck and took subcontract work from Boral Windows and Speedy Removals (Document BH). He gave this up because problems arose with Boral over customer dissatisfaction with his work.
The Applicant then worked as a truck driver for Hitchcock Haulage from 20 October 1986 until 17 December 1986 (Document BH). The Applicant explained that he separated from this job as a result of his attempt to run over the proprietor, Mr Hitchcock, in his truck when Mr Hitchcock refused to give him time off to be present at the birth of one of his children.
The Applicant then returned to Shoalhaven Engine Reconditioning where he worked as a mechanic from 5 January 1987 to 16 March 1989 (Document BH). He left this time because a machine was acquired which did some of the work the Applicant had been doing. After a four month break he returned again to this employment (Document BH) and remained from 24 July 1989 to 30 August 1990. He left this time because of problems again with his wrist and because Mr McLean, the proprietor, was "too grumpy".
The Applicant then worked for himself as a truck owner-driver between 14 January 1991 and 3 August 1993 (Document BH). This was unsuccessful and the Applicant had negative taxable income. He picked up work carting hay and bricks. He was accused at one point of stealing bricks.
The Applicant then, more than a year later, worked as a salesman and delivery driver for Autopro Super Store in Nowra from 31 October 1994 until 21 July 1995 (Document BH). He resigned because Mr McGrath, for whom he worked, put him on edge. He also had "blankouts", missed some red lights while driving and missed some turns in the road. Around this time he passed out on the road while on his motorcycle. He said in evidence that Autopro would have re-employed him had he applied.
THE HEARINGMr Walker's wife, Mrs Lynne Walker, represented him extremely ably. On 10 March 2000 Mrs Walker had provided a statement to the Tribunal. It was taken into evidence as Exhibit A2.
Mrs Walker's evidence
Mrs Walker read the statement to the Tribunal. In summary the statement made the following points:
Mrs Walker has known the Applicant since late 1980 when they were dating. He was confident, friendly and attractive. They socialised with a group of friends and they all rode motorcycles together.
After Mr Walker joined the army he was sent to Queensland. Although they broke up Mrs Walker remained interested in news of Mr Walker's progress in the army and he remained interested in news of her.
In August 1981 Mrs Walker found that Mr Walker's mother ceased to encourage her inquiries. She told Mrs Walker that Mr Walker had:
"…been home and did not want to talk to anybody[,] that he spent all his time at his cousin's (Paul McGrath's) house, [she] was wasting [her] time thinking about [Mr Walker] and [she] should move on and find someone else. She gave no explanation…"
Mr Walker then left the army and Mrs Walker heard in 1982 that he was hidden at his cousin's house. The two encountered each other and he told Mrs Walker she should forget about him. He referred in general terms to "something terrible" that had happened to him.
Mr and Mrs Walker saw each other occasionally after that until November 1982 when Mr Walker's mother decided that he should find a job and "join the real world again". She found him a job, rented him a house and arranged for him to have a loan for furniture. He was set up with a motorcycle and moved away to take up the job.
Mr and Mrs Walker then shared Mrs Walker's then flat. She was concerned by a story Mr Walker had told her that suggested he might be suicidal.
Under the same roof Mrs Walker noticed many symptoms in Mr Walker: he had nightly nightmares; he was always jumpy; he drank 8-12 litres of Coca-Cola every day; he worked odd hours; he would fly into a rage at the slightest thing; he was argumentative.
Mr Walker was unhappy working. Mrs Walker accompanied him sometimes and stayed for a time to help him to cope.
Mr Walker then moved into the series of jobs described in the facts earlier. The usual precipitating factor causing him to leave was a particular workmate or boss who would upset Mr Walker. He also visited Mrs Walker's workplace on occasions and commenced altercations with anyone he thought had caused difficulties for Mrs Walker.
Mrs Walker referred to the incident where Mr Walker attempted to run down his boss in his truck. This is covered earlier.
Mrs Walker started processes with the Department of Veterans' Affairs and Military Compensation authorities to seek compensation for Mr Walker. The Veterans' Affairs inquiries were fruitless, apparently because of Mr Walker's discharge on the basis of unfitness as a soldier. The application to Military Compensation authorities bore fruit some years later.
Mr Walker's attempts at self-employment driving trucks failed both times because Mr Walker was unable to deal with any type of social contact.
Mr Walker remains a suicide risk, in Mrs Walker's assessment – from time to time he refers to plans to suicide. At the same time, since 1995 his nightmares and "jumpiness" have faded but his rages and dependence on Mrs Walker have increased. He has not been able to cope with the children of the marriage. He loses his temper with them. He cannot cope with Mrs Walker being out of his sight for any length of time. He will find her and abuse her even if it is a school meeting or similar occasion.
Mr Walker's behaviour has caused difficulties with the children of the marriage. One child has begun to replicate Mr Walker's behaviour at school. Another has eating and anxiety disorders. Mrs Walker described at least one incident of a serious and destructive outburst by Mr Walker.
Mr Walker began to see Dr Heiner at the Nowra Mental Health Clinic who prescribed medication that has tended to calm Mr Walker.
Mr Walker now has a Veterans' Affairs gold card and has access to all the treatment he needs. He has been much improved as a result.
The Applicant's evidence
In cross-examination of the Applicant, Mr Whithear, for the Respondent raised the following matters:
In Document F a medical note records that the Applicant saw a doctor as early as 1 May 1979, less than a week after enlistment, for sedatives. The medical practitioner noted:
"…nervous ever since 7-8 years old. Had to take sedatives. Whenever he goes to a new place or do [sic] anything out of the ordinary he had to take pills to keep calm. Now, been feeling nervous here, poor sleep at night. To see psych."
The Applicant denied that he had seen the doctor for these reasons. He said he saw the doctor on that occasion "for the flu". At Document AH/190 Dr L Simes on 3 June 1994 wrote that the Applicant was his patient throughout the Applicant's childhood and that he had no record or any information indicating that the Applicant was given sedatives at any stage during his childhood.
In Document G a medical note records that the Applicant saw a doctor on 8 February 1980 for sore joints. The doctor noted:
"Very disenchanted disheartened unsettled soldier…pain both elbows. Clinically not much of note…"
This was well before the assault in Queensland.
References provided on behalf of the Applicant do not support his assertion that he has a long history of inability to get on with people. Mr Whithear referred to several of these references.
One was Document AP/133 written on 16 January 1997 by Ms Bronwynne McMahon, a principal in Speedy Removals. She said that the Applicant worked with that firm for a few weeks with a view to using his truck to subcontract removals work from Speedy Removals. He left because he could not afford to put a "pantec" on his tabletop truck.
Document AQ was a record of an oral reference given by Mr Bob McLean, manager of Shoalhaven Engine Reconditioning on 20 January 1997 (erroneously recorded as 1996 on the document). Mr McLean described a lengthy period of employment of the Applicant which seems to have ended because of painful wrists the Applicant developed as a result of a motorcycle accident some years previously. He said he had no complaint about the Applicant as an employee and that he carried out his duties "very satisfactorily". He did not see the Applicant experiencing any difficulties with concentration, attention span, short or long term memory or, emotional stability. His relationships with customers and clients and with the referee were good. The Applicant left of his own accord whenever he left Mr McLean's employ. The Applicant suggested that this reference related only to the second period of his working with Mr McLean. This does not square with the account in Document AQ which clearly relates to all periods of Ms McLean's employment of the Applicant. The Applicant disagreed with Mr McLean's statement that he left each time of his own accord. He said that he left to take a holiday on the first occasion; that he left to have an operation on the second occasion; and that he left on the third occasion because he was intolerant of Mr McLean.
Mr McLean also provided a reference (Document BH) at the time Mr Walker left his employ in 1984. He said that the Applicant was a steady worker always willing to help on any job assigned to him and that he left the job of his own accord. Mr Walker had no difficulties with this reference.
Mr J Wade, managing director of Autopro Superstore, Nowra, wrote on 28 January 1997 (Document AR/236) that the Applicant left that firm of his own accord in July 1994 and was re-employed on a casual basis for four months a year later. He was generally a reliable employee with only short term absences.
"…
Because of his generally outgoing [sic] personality his relationships with customers and other staff members was generally good. However, Mr Walker appeared to have mood shifts and became quite depressed and irritable at times. He also spent considerable amounts of time in the toilet. He also complained that the stress of the job was getting him down…
Mr Walker left of his own accord on both occasions and I was told by him both times that the stress of the job was too much for him.
…"Mr Ben Denton of Tea Pot Inn Automotives, Bombaderry, provided a reference on 6 March 1996 (Document AH/159) in which he said that he had seen the Applicant perform his duties in the motor trade and transport industry in the previous 15 years with an air of confidence and apparent ease but that in the last two to three years his confidence had diminished greatly and an air of uneasiness had appeared.
The Applicant sees Dr Heiner, a psychiatrist, and Mr Tony Weaver, a psychologist, about his problems. They have introduced the Applicant to relaxation and meditation techniques to help him with his problems. These do not always work as the Applicant "gets wound up". The Applicant said that the problem he has is "putting up with morons".
The Applicant has been in receipt of compensation payments from Military Compensation authorities since 1995.
In questions arising the Applicant agreed that, despite apparently favourable references from Mr McLean, Mr McLean had never recommended the Applicant to another employer. It was established also that the Applicant tended to leave jobs because he was tired during the day. This emanated from his sleep problems at night. It was also established that the Applicant had for many years been able to tolerate and mix with a number of identified individuals, some of whom are now incarcerated. The Applicant considered these people to be "morons" whom he could tolerate in earlier times but whom he could now not tolerate because of his condition.
Dr Davies' evidence
The Respondent called Dr G R W Davies, a psychiatrist, as a witness. He had provided a report dated 20 February 1995, Document R (also Y/120). He diagnosed a clinically significant depressive illness. He saw the major factor precipitating it as a combination of the sexual assault and its handling by the army. He saw the Applicant as temporarily disabled completely for work but considered he had improved. Dr Davies had also provided documents under summons which were referred to in his questioning by Mr Whithear. These documents are Exhibit R3.
In his evidence Dr Davies made the following comments:
The Applicant exhibited symptoms of depression. He was angry and depressed. This was borne out by his score on the Minnesota Multiphasic Personality Inventory (MMPI) which indicated he had depression and self-doubt. He would find it hard to express feelings and he would be prone to social isolation.
The Applicant did not have PTSD as required in the instrument known as DSM-IV. PTSD requires a score of 34 under MMPI. Mr Walker scored only 22.
The depression was linked to the trauma he suffered in the army.
In saying that the Applicant was temporarily disabled completely for work Dr Davies was referring particularly to work in the military at the time of his discharge. He commented that Mr Walker seemed able to find and retain work a little time after his army discharge.
Dr Davies considered that Mr Walker's depression would have been greater soon after leaving the army than it later became. Dr Davies discussed Mr Walker's capacities to work as a trades assistant, sales assistant or labourer. He said that straight after the assault Mr Walker could do none of these. However, the period of acute disturbance would resolve and he could then resume work. Dr Davies considered that the period of acute disturbance lingered until Mr Walker's discharge and some time after. However, it was clearly over when he started work in September 1982.
Dr Mason's evidence
Mr Whithear then called Dr J W Mason, psychiatrist. Dr Mason had recommended in 1981 that the Applicant be discharged from the army (Documents J and K). On 11 January 1995 he wrote to the Applicant modifying his views compared to 1981. He said he had been impressed in 1981 by the Applicant's strong determination to leave the army and to find a means of achieving this. He understood how the assault incident could have made the Applicant more determined to leave. Had Mr Walker told him of the assault that would have added weight to Dr Mason's support for the Applicant to leave the service. Counselling could have been offered but counselling was not likely that late in the piece, and given the Applicant's desire to leave.
Dr Mason also wrote a report dated 4 January 2000 (Exhibit R1). He regretted offering the opinions in Documents J and K in 1981 without knowing of the Applicant's sexual assault and his previous good record of work and social competence. He said that he would have attempted to commence treatment for the Applicant's stress reaction had he known the full facts, however he doubted that the Applicant would have been interested, so great was his desire to separate from the army. As regards Mr Walker's post-service employability, Dr Mason considered that Mr Walker's relief at being able to leave the army would have been so great immediately after separation that his civil employment possibilities would not have been restricted at all. They would have become more restricted later as his post-traumatic stress and depressive episodes developed.
He assessed the extent to which the Applicant's retirement impairment had diminished his capacity as at 12 January 1982. Mr Walker's capacity was minimally diminished (less than ten per cent) for civil employment as trades assistant or sales assistant. His capacity was moderately impaired (30 per cent to 60 per cent) for work as a labourer or as a military trades assistant or sales assistant. In examination in chief Dr Mason said that he would regard the Applicant's capacity for civil labouring work as only minimally diminished if he made no allowance for his view that the Applicant might regard such work as demeaning in that it would not require him to use his developed skills.
In his oral evidence Dr Mason enlarged on his diagnosis in his report of 4 January 2000 of a stress reaction. He was invited by counsel to compare or link that diagnosis with PTSD, a condition the Applicant considers he has. Dr Mason said the two conditions generate similar symptoms but that they are much more acute with PTSD. PTSD was said to come on later as the affected person is unable to adjust or accept or come to terms with what has occurred.
Dr Mason was inclined to diagnose a stress reaction because of the Applicant's service records which indicated that he sought anti-anxiety medications soon after enlistment (Document F). Dr Mason had then noticed that the Applicant's next medical attendance on 8 February 1980 was for sore joints (Document G) and the medical officer noted that he was dishevelled, disenchanted and unsettled. The Applicant again saw the same medical officer on 13 August 1981 (after the assault) and the clinical report notes that he is to see a psychiatrist (Document H). Again on 25 September 1981 the Applicant saw a medical officer who referred him to a psychiatrist for assessment as to suitability for continued employment (Document I). That referral was to Dr Mason. It was on the basis of the resulting consultation on or about 19 October 1981 that Dr Mason wrote the reports referred to earlier.
In evidence Dr Mason recalled his impression of Mr Walker by reference to his notes. He made the following points:
Mr Walker was a very distressed gentleman. He wanted to leave the army.
Mr Walker had joined the army to escape from home because of parental disharmony.
He tried to make a go of the army but everything about it and its training methods were anathema to him. He resented everything the army did. It intruded into his off duty life and into his working day.
He was very angry. He said that if he did not get out quickly he would do something silly.
This was the context in which Dr Mason assessed the Applicant as psychologically unsuited to the army.
In response to counsel Dr Mason said that Mr Walker was at the time suffering from an adjustment disorder. He had not settled into army life. The assault had resulted in an extreme stress reaction and he was in a state of flight. When he returned from being AWOL the situation was as bad as before and when he was transferred at his request the situation in his new post was adverse because news of the assault had reached there also. The "acute stress reaction…could well over the years turn into a [PTSD], particularly as he had…made no mention of this to anybody and didn't really appear for treatment until '94 or something."
In response to questions from the Tribunal Dr Mason characterised the reaction immediately after a stressful event as to become numb. A situation of acute stress then develops. This settles and becomes chronic stress. Mr Walker had chronic stress when he left the army. Chronic stress predisposes a person to develop PTSD some time, possibly years, later.
Mrs Walker, in cross-examination elicited the following:
Dr Mason had not considered PTSD as a possible diagnosis of the Applicant's condition in 1981. Dr Mason did not at the time of the hearing consider that Mr Walker demonstrated PTSD symptoms when he saw Mr Walker in 1981. He also stated that the onset of PTSD can often occur some time after the stressful event.
Dr Mason was unaware in 1981 that the Applicant had not left home to join the army. He had left the family home some time prior to enlistment.
Dr Mason considers that the Applicant was finding life in the army more difficult than it was for the average person even before the assault.
Dr Mason accepted the proposition that the discharge from the army was also a stressful experience for the Applicant.
During cross-examination of Dr Mason, Mrs Walker introduced the following elements:
The notes by an army doctor in Document F, 1 May 1979, recording that the Applicant had a history of taking anti-anxiety pills was later proved false. This would be a reference to Dr Simes' statement that the Applicant had no such history in Document AH/190 discussed above.
The Applicant succeeded in obtaining his trade certificate in the army. That would suggest he was not so unsettled that he could not work.
The Applicant had attempted to join the services three or four times before he was accepted in 1979.
The Applicant fared better in the army than Dr Mason accepted. Mrs Walker cited Exhibit A5, a statement by Lt Col E J Andrews dated 29 June 1998, in which he described the Applicant as:
"…
…a soldier of a quiet nature, who kept to himself, however he was a good and diligent tradesman and [he] had, at no time prior to the assault, any cause to counsel him on any matter related to his work or general conduct.
…"The Applicant was discharged by the army without any treatment for what was quite possibly PTSD. The Applicant had actually requested psychiatric assistance from the army. That was why he was referred to Dr Mason. Instead of being given such assistance he was assessed as unsuited to be a soldier and discharged from the army.
Mr McLean's evidence
The Respondent's representative called Mr R G McLean to give evidence. Mr McLean had employed the Applicant on several occasions, initially in a training position, amounting in total to about five and a half years. He was asked to examine the reference he had given in respect of the Applicant over the telephone on 20 January 1996 (Document AQ). The contents of this reference were summarised earlier. Mr McLean generally endorsed the reference but said he doubted he put the comments in the second bullet point in the way they were written down. Explaining this, Mr McLean said that Mr Walker could have concentration difficulties at times and there were some jobs in the firm he would not be happy to have Mr Walker do. Mr McLean said Mr Walker could "drift off a bit". On occasions the Applicant would have to ride his motorcycle 50 kilometres to return two nuts and bolts to a customer because he had left them off when the job went back to the carrier. Mr Walker's error rate was not unacceptable and he did not repeat the same errors. Mr McLean confirmed that Mr Walker's interpersonal relationships with customers and Mr McLean were generally good.
Mr McLean found the Applicant efficient at work in 1984 and still efficient in his second period with Mr McLean. The Applicant's wrist problems did cause some problems. He regarded the Applicant as comparable to other employees. He had had about six employees over a 25 year period. Mr McLean said he would have Mr Walker back "tomorrow in a shot" if circumstances were different. In the final period when Mr Walker had worked for Mr McLean he had wrist problems which meant he could not do heavy lifting.
In cross-examination Mrs Walker put to Mr McLean that in the reference he gave Mr Walker in 1984 (Document BH/293) he had not recommended Mr Walker to other potential employers. He had said in that reference that Mr Walker was a steady worker always willing to help on any job assigned to him. Mrs Walker did not consider that a glowing reference, especially compared to a reference he had provided for her, whom he had never employed. This was Exhibit A11, dated 27 June 1988. In that reference Mr McLean said that Mrs Walker had a pleasant personality, was always willing to help and had been successful in everything she had undertaken. He said he had no hesitation in recommending her to any future employer. Mr McLean said that he would not read very much into the differences between the references as he sets little store by them in any event.
Mrs Walker also had Mr McLean confirm that the physical arrangements in his workshop meant that Mr Walker could work alone in his own space and not side by side with anyone else. Mr McLean confirmed that the barrier to Mr Walker's re-employment by him is his wrist. He would be concerned about the workers compensation risks if he took Mr Walker on again.
Lt Col Andrews' evidence
The Applicant then called as a witness Lt Col E J Andrews. This witness was Officer Commander of First Signal Regiment Workshop when Mr Walker worked in that workshop. He had written the letter that was Exhibit A5. This was dated 29 June 1998. In his letter the witness described the Applicant as a good and diligent tradesman who needed no counselling as regards work or general conduct.
He referred to the sexual assault on the Applicant. He described the distress suffered by the Applicant and the somewhat inadequate and inexpert counselling available to the Applicant after the incident. He explained that the military culture after such an incident was to concentrate on the legal ramifications of the alleged conduct of the perpetrators rather than to concentrate on the victim. Counselling could be arranged, however, via the medical system. He could not recall if the Applicant had access to this.
In his letter the witness called attention to the Applicant's isolation at the time. He referred also to the trauma induced by the subsequent criminal proceedings in the civilian courts against those who committed the assault. Mr Walker was the key witness and was cross-examined. The perpetrators were popular soldiers and Mr Walker's actions in testifying against them went against the prevailing army culture of settling differences within the unit. Some in the unit believed that a prank had simply got out of hand and they were sympathetic to the perpetrators. Mr Walker was concerned that he would be met by reprisals.
In his evidence the witness described Mr Walker as quiet, a loner who kept to himself. He was a diligent worker who worked on his own. He had no particular problems with his workmates and seemed to get on well enough with them. In answer to a question from the Tribunal the witness said that there was no evidence that the Applicant's powers of concentration were a problem before the assault. After he was assaulted his time in the workshop was much reduced because of demands on his time from prosecutors and investigators.
After the assault the Applicant was visibly distressed. He was more withdrawn at work. He worked less as part of a team and more directly for the senior non-commissioned officer. This was an unusual arrangement. He did not seem to want to be there. The event had had a definite impact. The witness arranged for Mr Walker to have a month's leave following the assault. He thinks it was to get him away and back to his family. Immediately after the assault the witness accommodated the Applicant in his own house. Mr Walker was being blamed by some of his colleagues for what had occurred. He had nowhere to turn and so the witness had taken him in. While investigations into the assault occurred and the court action proceeded the facility was ripe with rumours and there were some personal threats from those who sided with the perpetrators. The witness considered it reasonable for Mr Walker to have gone AWOL when he did. He received the minimum punishment when he returned. The Applicant felt justly let down by the system.
The witness was not surprised that word of what had occurred in Queensland had spread to Bandiana when the Applicant was transferred there.
Mr Travis' evidence
The Applicant's representative then called Mr V Travis to give evidence. This witness wrote the statement that is Exhibit A4. In his statement he said that he had known Mr Walker since 1979. At that time he was a proud and confident, country bred young man, enthusiastic and eager to talk of his great interest in mechanics and of his hopes and plans for his army career. His first setback was when he broke his wrist in December 1980. He was incapacitated for a long time and found it galling to be unfit for full duties. He was determined to further his trade and pull his weight with his fellows.
After the Applicant was assaulted Mr Travis spoke at length with him when he returned home on leave. He was very distressed, shocked, frightened of further violence on his return, unsure of receiving any redress and confused by the general lack of interest in his predicament. He was unable to practice his trade. He was rejected by many of his colleagues as an idler and informer. He became erratic in his moods. He could be withdrawn, morose, angry and belligerent. His family and friends tried to help but he rebuffed them. He did not have access to appropriate counselling.
When Mr Walker returned to his unit at Ennogra he was threatened and intimidated by the perpetrators and others. He was ostracised as an informer. He then went AWOL. While the Applicant was AWOL he again spoke with Mr Travis. He was in fear as to what the army would do with him for going AWOL. Mr Travis liaised with the Applicant's commanding officer who assured him of Mr Walker's safety and the need for him to give evidence in the assault prosecution in November 1981. Mr Travis shared accommodation with Mr Walker during the court hearing. The offenders were on bail and in barracks.
The Applicant became even more withdrawn and even a transfer to Victoria raised little interest for him and provided little hope of a return to constructive soldiering or his former trade. The Applicant returned home frequently from Bandiana in Victoria and Mr Travis saw him. He was unhappy there. He was ostracised because of his wrist injury. He did not trust his colleagues. He consumed excessive alcohol. At home he railed against the army and could not be mollified. He became agitated and belligerent and would storm off in a rage. He found army discipline close to intolerable even though he had previously accepted it.
The Applicant's discharge as not suited to be a soldier rather than as medically unfit caused added distress as he felt he was being blamed for his inability to fit back into the military system. After he found work back at his home base the Applicant improved somewhat but his moods could be volatile and he could fly into a rage if he heard an opinion different from his own. This strained family relations and Mr Walker had few friends.
Mr Travis suggested that the Applicant seeks out solitary work such as driving because of his tendency to belligerent behaviour. His attempts at self-employment have foundered because of personality clashes with customers and suppliers. He has been calmer since medication and no longer rages against his misfortunes. Mr Travis said that Mr Walker was greatly changed by his short period of service and he had no doubt that the assault was central to that change.
The additional material to emerge in evidence was the following:
When the Applicant was working for Mr McLean from 1982, Mr Travis considers that the Applicant's reactions to management decisions with which he disagreed or to customer complaints were explosive. This is at odds with Mr McLean's written and oral evidence. The Tribunal considers that Mr McLean's evidence is to be preferred as he was in the best position to comment being present working with the Applicant. He also impressed the Tribunal as a witness of truth.
When Mr Travis saw Mr Walker in Canberra at the time when Mr Walker was running his own trucking business Mr Walker was under pressure to remain solvent. He was angry at being "mucked around" by employers or customers.
Mr Travis considers that Mr Walker has been incapable of holding down a full-time job since he was assaulted. He has tried and he has gone into appropriate fields. However, he cannot control his temper or irritation. This seems to overlook the Applicant's periods of sustained employment with Mr McLean.
Mr Travis said that Mr Walker has been trying to work over the years in order to support his family.
Dr Heiner's evidence
The Applicant's representative then called Dr J Heiner, a psychiatrist. Reports from Dr Heiner appear in the section 37 documents as Documents S, T, X, and Y/108-119. The earliest of these was written on 22 September 1995 and the most recent was dated 8 November 1996. The points made in his reports by Dr Heiner are as follows:
He first saw Mr Walker on 29 March 1995. By 22 September 1995 he had seen the Applicant six times (Document S, also Y/108).
The Applicant was clinically depressed when he first saw Dr Heiner. He was prescribed prozac. As at 22 September 1995 Mr Walker was isolated and generally disinterested in his family and hobbies. His wife had described him as forgetful, with a detached, disinterested manner. He was short tempered and would "stress out", leaving the family situation, with little provocation. He complained constantly of headaches and aches and pains. The Applicant had a mild PTSD. This, in addition to his "on-going legal case with the Department of Defence" precipitated his depression. He had no close friends and led a rather isolated existence mainly in and around the family home. Dr Heiner planned to review Mr Walker's depression, medication and need for supportive therapy in a few months time.
In Document Y/110, prepared on 29 December 1995 by Dr Heiner for Military Compensation authorities, the doctor commented on Mr Walker's capacity for work. His view was that the Applicant was certainly incapacitated for any type of work in the latter part of 1995. This was due in part to his depressive illness and in part to his ongoing irritability, low frustration tolerance, poor concentration and poor memory. Dr Heiner had hopes for an improvement in 1996 and a return to work could be contemplated. He considered that the Applicant might require some psychotherapy to deal with some long unresolved issues. He proposed reviewing Mr Walker early in 1996 with a view to referring him to the CRS for assistance.
In Document T, dated 7 February 1996, Dr Heiner referred the Applicant to the CRS. Dr Heiner suggested in this referral that Mr Walker had realised in recent years the full effect of the assault upon him and his attempts to obtain compensation had intensified his frustration and resentment. His symptoms had consequently worsened. Dr Heiner considered it was time for Mr Walker to look to the future. He had always worked until recently. He wanted to seek some form of employment in the future but was uncertain what type given his then symptoms.
In Document Y/112, dated 4 April 1996, Dr Heiner wrote to the Australian Government Health Service about Mr Walker's PTSD. This was in relation to his claim for a social security pension. By this time Dr Heiner considered that his depression had largely dissolved but he remained withdrawn, unrealistically demanding and impatient with his wife and children and increasingly angry with the army and those who assaulted him. He was having dreams and flashbacks about the assault. It was the increase in symptoms over the previous two years that was preventing him from working and led to his pension application. He was keen to work but unable because of his symptoms. There were good prospects that he would return to work. The prognosis was not poor. Dr Heiner thought Mr Walker should be paid a disability support pension to be reviewed in two years time.
In Document X (also Y/115), dated 8 November 1996, Dr Heiner provided a report to Comsuper. Comsuper had asked for his opinion about issues on and from the date when Mr Walker left the army, 11 January 1982. Dr Heiner expressed reservations about how much assistance he could give having first seen Mr Walker 13 years later. He explained that he would be relying on the histories given by Mr and Mrs Walker to a large extent. Dr Heiner said he understood Mr Walker's employment difficulties to follow a pattern whereby he would commence a job full of hope but would eventually leave after some frustration with the boss or other employees made it impossible for him to return. Some jobs lasted only a few days. Some lasted a few months. None was permanent because of low frustration tolerance, inability to cope with authority, and too close contact with other males.
Dr Heiner diagnosed a long term PTSD. He had had a significant depression and retained some depressive symptoms. This was the cause of his low frustration tolerance, irritability, sensitivity to perceived criticism and threats, discomfort around other males and difficulties working in a team environment. As regards prognosis, Dr Heiner said Mr Walker's extremes of behaviour had perhaps decreased a little. Mr Walker had also ceased seeking employment which seemed to help with the decrease in symptoms. This avoided one of the significant stresses he had had to deal with. Dr Heiner regarded the Applicant as still severely impaired and having severely limited future work prospects. Mr Walker was on a CRS program with results limited to psychosocial benefits rather than work prospects.
Dr Heiner considered that Mr Walker's incapacity for work at the time he left the army would have been "moderate". Dr Heiner regarded Mr Walker as still moderately incapacitated for work at the date of his report, November 1996. He was still moody, unpredictable, prone to isolating himself in the house and glaring at those around him, but also capable of being more involved in the family's daily activities. He had recently broken a child's toy when he lost his temper because the child was playing near him.
As at November 1996 Dr Heiner regarded the Applicant as not capable of employment. He had possibly not been capable of employment for some time. He had managed employment for short periods because there was no alternative.
"The period of stable employment he had when he left the army, when he achieved his motor mechanic qualification, is reportedly due to the patience and tolerance of his employer, rather than to the fact that Mr Walker was distressed or affected [sic] at that time."
In his oral evidence Dr Heiner made the following points in addition to those in his reports:
He still sees the Applicant once a month.
The Applicant has moderately severe depression.
The Applicant suffers from ongoing stress resulting from unfinalised claims such as the matter under appeal to this tribunal. The Applicant's aim is to obtain financial support and some control over his life but also to obtain what he sees as justice. The Applicant's PTSD was diagnosed sometime between March and September 1995. It is difficult to say how much of a contribution to the Applicant's condition is attributable to his unfinalised claims. The Applicant could have suffered from PTSD much earlier than when it was diagnosed. It can be overlooked.
The witness was asked to consider whether Dr Mason's assessment of 19 October 1981 (Document J) was a diagnosis of PTSD when viewed in retrospect. Dr Mason had referred to Mr Walker resenting intrusions by the army into his off duty and personal life, similar intrusions into his working life and the danger of inappropriate aggressive outbursts or desertion. Dr Mason said that Mr Walker had an asocial personality with a good deal of hostility and aggression amongst his personality traits. He was strongly independent and had difficulty playing the subordinate role sometimes necessary in the army. Dr Heiner responded that it would not have been a diagnosis of PTSD if the description was of the Applicant's steady state. Dr Mason presented the problems as apparently longstanding. The behaviours would be consistent with PTSD. Dr Heiner thought it unsurprising that the Applicant had not sought medical treatment. This would follow from the independent streak he had which Dr Mason had identified.
The Applicant could suffer indefinitely from PTSD. All that is known in the Applicant's history to explain its onset is the assault in the army. Dr Heiner did not expect any significant change.
Dr Heiner would expect the Applicant to distrust, and feel insecure working around, other males and to avoid workplaces or other places that remind him of the trauma he had suffered.
There is no particular group with whom the Applicant could not work.
The Applicant's condition could change at any time and his symptoms can fluctuate. Some in his position resort to drugs and alcohol.
Dr Heiner considered that the only type of job the Applicant could do would be a job with little or no supervision. An example was restoring motorcycles. A hobby type job would be in order. Dr Heiner considered him incapable of regular employment. When asked to consider Mr Walker's work history over the past 19 years Dr Heiner said Mr Walker had some work history but the jobs had ceased because of the Applicant's frustration and difficulties relating that had emerged over time in each job.
In cross-examination the following issues were discussed:
Based on Document S, Dr Heiner's earliest report, there seemed an apparent change of diagnosis in the first six months of meetings with Mr Walker. Initially the diagnosis was depression. It later became PTSD. In response to a question Dr Heiner said that it was probably not a change of diagnosis. Depression was a symptom which Dr Heiner was interested in treating. PTSD can generate the symptom of depression. The diagnosis of PTSD was made in conjunction with the longer term history of events over time, both before and after the incident. Dr Heiner initially thought the correct diagnosis was major depressive disorder or illness under DSM-IV. He attributed the cause to current problems such as Mr Walker's quest for compensation. Later when the full history emerged he related the present symptoms back 19 years to the initial incident.
The scenario Dr Heiner thought applicable was:
"we've got a young man in the army who…was functioning at an average level. This [assault] happened [to him]. He got pissed off, angry, it changed him. He became short tempered, irritable, found it difficult to deal with people. That goes on for some years affecting his work life, affecting the home life, having a reported impact on a lot of areas of his life. He keeps looking for work, he thinks it's his fault, he struggles to survive as society says he should. At some point in that process he feels more comfortable or something occurs where he thinks, hey, this is happening because that occurred back there. At that point his focus changed. At that point it changed to the point where he became – saw himself as a victim, he saw himself as unfairly treated and started to seek justice. From that point on the way he dealt with his problems, the way he dealt with stresses, what he expected of himself, altered. Over time that led to depression, the clinical depression. So there are different phases in how he's dealt with, how this incident has affected him. If he'd gone through the rest of his life getting jobs, losing them, seeing himself as a bit of a loner, feeling he was a bit of a no hoper, he possibly would not have got depressed. Those people who come out of Vietnam and become alcoholics and drink themselves into an early grave possibly don't become depressed. It doesn't necessarily alter what the trigger might have been. It alters the emphasis when you're using diagnostic terms and such and the way you ask the question…[You can trace the present symptoms back to what happened so many years ago.]"
Later in cross-examination Dr Heiner accepted that adjustment disorder rather than PTSD was the appropriate diagnosis of Mr Walker's condition when he was discharged from the army. The difference between the two conditions was a function of the passage of time. By 1993 he had symptoms that were likely symptoms of PTSD. He was unemployable at the latest by 1995. Later, in relation to questions put by Mrs Walker and the tribunal, Dr Heiner said that it was not possible to say whether PTSD or adjustment disorder is the more disabling condition for work. In any case it would depend on the individual.
Counsel put to Dr Heiner that the history he had accepted from Mr Walker was different from that given in evidence by Mr McLean. The main differences were that Mr Walker was a very satisfactory employee who compared favourably with other employees and that Mr Walker had lengthy periods of employment with Mr McLean. Dr Heiner conceded that there appeared a discrepancy. Dr Heiner agreed with counsel that the conditions of work in Mr McLean's business would have suited Mr Walker's requirements. The building was fairly large. He was not close to other workers.
Counsel put Dr Mason's assessment to Dr Heiner, notably that Mr Walker had PTSD in 1995 but adjustment disorder in 1982, and that Mr Walker was impaired for army employment but had only a small impairment for civil employment. Dr Heiner considered that it is doubtful whether a doctor such as Dr Mason, writing as he was in January 2000, can assess work incapacity as it was 19 years earlier. He conceded, however, that the fact that Dr Mason had seen Mr Walker in 1981 would put him in a better position to attempt such an assessment than Dr Heiner who saw Mr Walker for the first time in 1995. Later in cross-examination Dr Heiner said that Mr Walker's history of work for two years (1982-1984) for Mr McLean made it seem as though Mr Walker was not in the short term even moderately impaired. "He functioned quite well for those two years." In further examination by Mrs Walker Dr Heiner noted Mrs Walker's contentions that Dr Mason saw the Applicant only once for a short time prior to his discharge and that he based his opinion on some medical information about Mr Walker that was incorrect, and so Dr Mason's views on Mr Walker's employability in 1982 are questionable. Dr Heiner agreed that there was some validity in this but that medical reports are commonly prepared in such circumstances. Mrs Walker also pointed to a gap of some months between the date of Mr Walker's discharge from the army, 11 January 1982, and the date of commencement of his work for Mr McLean, 10 December 1982. Dr Heiner considered that this might mean that Mr Walker was more incapacitated for civil employment immediately, and for some months, after his army discharge, than he had thought above.
Dr Heiner agreed with counsel that it appeared that Mr Walker's condition deteriorated for some reason about two years before he first saw Dr Heiner, ie in 1993.
Applicant's final submissions
In final submissions Mrs Walker, for the Applicant, made the following points:
A delegate has decided that the impairment that caused Mr Walker's retirement from the army was PTSD not depression as was at one stage notified to the Applicant (Documents AU and AW).
The Tribunal has evidence as to the assault and its aftermath, notably the deficiencies in the army's handling of Mr Walker and its lack of attention to his problems emanating from the assault episode.
The Tribunal has evidence as to the difficulties Mr Walker has in a work situation – he does not like to work with or near others and he succeeded in working for Mr McLean because of the particular accommodation Mr McLean made for Mr Walker's requirements.
Mr Walker was more than ten per cent incapacitated for civil work after leaving the army. The decision under review should therefore be changed.
Respondent's final submission
Mr Whithear, for the Respondent, provided a most helpful submission as to the proper operation and interpretation of the Act.
The first step is to consider section 30 of the Act. Section 30(2) sets out the criteria for consideration. These are:
(a) The vocational, trade and professional skills, qualifications and experience of the member of the scheme under consideration (the member);
(b)The kinds of civil employment which a person with the skills, qualifications and experience of the member might reasonably undertake; and
(c)The degree to which the physical or mental impairment of the member that is the cause of the invalidity or physical or mental incapacity by reason of which the member has been retired has diminished the capacity of the member to undertake the kinds of civil employment referred to in item (b) of this list.
Skills, qualifications and experience
Mr Walker's situation is that he has completed his school certificate (he was at school until part way through fifth form). He worked after he left school as a driveway attendant for some months, as a labourer in a chemical factory for three months and in his uncle's sawmill on an unpaid basis. He then worked in the army as a trainee mechanic and he gained a military certificate of competence in this field. In civil employment terms this was a partial qualification.
Relevant kinds of civil employment
This experience would probably equip Mr Walker to work in several fields in civil employment. The work as a driveway attendant would translate to a sales assistant in an appropriate kind of employment or service station attendant. Mr Whithear cited the full Federal Court decision in Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 for the proposition that in considering this criterion, which is introduced in section 34(2)(b) of the Act, reference is to be made not to the very task or job that the member undertook at some stage. Reference is to be made to the more general kind of employment of which the particular job is an example. At page 141 the court says:
"…
It should also be observed that the primary question posed by par (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience 'might reasonably undertake'.
…"
Mr Walker could work as a labourer as he has done in the chemical factory and sawmill. Labouring is a general kind of employment as required in House's case (supra).
Effect of physical or mental impairment
The application of section 30(2)(c) has to be understood in relation to section 37 of the Act. Section 37 is designed to correct mistakes. It is limited in how it permits this to occur. Its constituent elements are:
A member must have been retired on a ground other than his or her invalidity or physical or mental incapacity to perform his or her duties, as Mr Walker was in this instance.
After the retirement the Chief of Staff responsible for the army, or a person he or she authorises, must inform the Defence Force Retirement and Death Benefits Authority that, at the time the member was retired, grounds existed on which the member could have been retired on the ground of invalidity or physical or mental incapacity to perform his or her duties.
The member may be treated as if he or she had been retired on the ground of invalidity or physical or mental incapacity to perform his or her duties.
It gives the Respondent a wide and unfettered discretion to treat a member such as Mr Walker as if he had been retired on invalidity grounds but it leaves the determination of the cause of the invalidity or of the physical or mental incapacity of the person to the service not the Respondent.
The ambit of the Respondent's discretion was made clear by the full Federal Court in Defence Force Retirement and Death Benefits Authority v Britt (1984) 4 FCR 306. This tribunal can refuse to recognise, accept or apply the certificate that has been given to the DFRDB Authority by the relevant arm of the defence force. It cannot later change the impairment identified as the cause of the recipient member's retirement at the time of the assessment.
The Respondent exercised its discretion to pay a benefit to Mr Walker. Section 30 of the Act then becomes important. Section 30(2)(c) requires an assessment of the impact on the member's capacity to do relevant work caused by the invalidity or physical or mental incapacity of the member which prompted his or her retirement. For this reason, and because of section 30(2) of the Act, the Tribunal must address the invalidity or physical or mental incapacity that brought about Mr Walker's retirement.
The certificate given to the Respondent by the Chief of Staff under section 37 of the Act can identify the invalidity or incapacity generating the retirement. Here it did not (Document CA). The Respondent wrote to the army on 19 November 1996 to find out the relevant cause of Mr Walker's retirement (Document BW). This is a course approved as valid in the Federal Court decision in Cocks v Commissioner for Superannuation (1990) 21 ALD 297, a case relating to section 66(2) of the Superannuation Act 1976, a provision raising similar issues to section 30 of the Act. Document BY, dated 5 December 1996, contains the army response. Mr Walker was:
"…liable to inappropriate aggressive outbursts, was asocial and strongly independent with a good deal of hostility and aggression and was finding it difficult to accept his subordinate position. He was classified S3 under the PULHEEMS system of medical classification which prohibited his serving in a primary fighting role…"
Mr Walker's wrist disability, cited by Mr McLean in evidence as the barrier to his re-employing Mr Walker, was not relevant to the reasons advanced by the army for retiring Mr Walker, that is aggressive outbursts, asocial behaviour, a strongly independent streak, hostility, aggression and inability to accept a subordinate position.
The Tribunal has then to determine the degree to which the physical or mental impairment of the member that is the cause of the invalidity or physical or mental incapacity by reason of which he member has been retired has diminished the member's capacity for relevant kinds of civil employment.
The evidence before the Tribunal is that the Respondent has decided that it was PTSD that was the impairment. However, the Tribunal can decide that the Respondent was incorrect in this if motivated to do by the evidence. There was considerable evidence before the Tribunal. On this question and related matters the strongest expert evidence was that from Drs Mason, Davies and Heiner. Counsel for the Respondent submitted that evidence from Mr Weaver, a psychologist, Dr McCartney, a general practitioner, and Sharon Scouller, a rehabilitation counsellor, should be put to one side as it had not been tested by cross-examination and they all gave their opinions on the basis of Dr Heiner's earlier expressed opinions, although this is in fact not the case with Mr Weaver who wrote in July 1994, 14 months before Dr Heiner's first report. Counsel suggested that, because of this, their opinions were no more cogent than Dr Heiner's was.
As regards Dr Mason who saw the Applicant in October 1981 before his discharge from the army, and who has had access to most if not all of the medical and other evidence, his opinion is that Mr Walker had an adjustment disorder at the time of his discharge from the army with PTSD developing later. Dr Mason did not consider Mr Walker's presentation in 1981 as consistent with PTSD. Dr Mason has considerable experience with PTSD because of his practice near Bandiana. Dr Heiner agreed in evidence that adjustment disorder was probably the condition in question when Mr Walker retired. He agreed that PTSD was something that developed from the adjustment disorder. Counsel for the Respondent argued that Dr Mason's opinion should be accorded considerable weight because he had seen the Applicant at the relevant time, Dr Heiner tended to support his opinion, and Dr Mason has particular expertise with PTSD.
Dr Davies tended to disagree. He considered that the Applicant had had PTSD since the assault incident. Counsel for the Respondent submitted that the opinions of Drs Mason and Heiner are to be preferred because Dr Davies saw the Applicant only once for a medico-legal purpose whereas Mr Walker has seen Dr Heiner on many occasions, and because of the advantages Dr Mason had in assessing Mr Walker. These have already been listed.
The Tribunal must then assess the effect of the condition affecting Mr Walker on his capacity to do relevant kinds of work. The views of the medical experts are relevant but not decisive. This is not a purely medical issue. However, the medical experts have expressed opinions. Dr Mason considered that in the short term Mr Walker was only minimally restricted by his adjustment disorder in obtaining relevant civilian employment (Exhibit R1 and his oral evidence). In using the adverb, "minimally", Dr Mason meant a restriction of less than ten per cent (Exhibit R1).
Dr Heiner in his early written reports regarded Mr Walker as moderately incapacitated for civil employment when he was first retired from the army. In oral evidence, when apprised of additional facts about Mr Walker's employment history, he changed his view and considered that Mr Walker could have found civil employment from the date of his discharge from the army. He changed his mind somewhat again when it was explained that there was a ten month gap between Mr Walker's discharge and the date on which he started work for Mr McLean. Dr Heiner and Dr Mason agree that Mr Walker's impairment deteriorated significantly over time. It reached a low point some time between 1993 and 1995, according to Dr Heiner who, as the Applicant's treating psychiatrist since 1995, is best positioned to know. The position as seen by Dr Heiner is complicated by his evidence that the contribution to Mr Walker's incapacity for relevant civil work has remained fairly constant in relation to PTSD. What, at least since 1995, has actually caused the Applicant difficulty in working, Dr Heiner says, are the problems arising from his focus on compensation. This is consistent with Mr Walker's employment record.
Dr Davies' view is that the Applicant's capacity to undertake relevant civilian employment was restricted at the date of his discharge from the army but that he had a capacity for such work nine or ten months later when he started work for Mr McLean.
As to the question of the appropriate classification to be accorded Mr Walker under section 30 of the Act, Mr Whithear for the Respondent argued that Mr Walker could clearly work as a trades assistant in December 1982. He submitted that Mr Walker could have done that or similar work from the time of his discharge. Mr Walker's evidence was that he ultimately obtained the job with Mr McLean because he wanted to eat and his mother forced him out of the role of being supported. He then had no option but to work. Mr Whithear also pointed to the fact that Mr Walker had sat for his trade qualification in late 1984 and had been granted it. He suggested that Mr Walker therefore had considerable capacity at that time.
Counsel for the Respondent addressed the relevance of the evidence about Mr Walker's behaviour at home. Mrs Walker, for the Applicant, had suggested that Mr Walker's problems at home were indicative of Mr Walker's problems at work. Mr Whithear submitted that section 30 of the Act restricts a decision-maker to those matters specified in section 30(2). The section says that "the Authority shall have regard to the following matters only:…".
McGregor J in Defence Force Retirement and Death Benefits Authority v O'Fee (unreported, Federal Court, 6 June 1985) said in relation to an equivalent section in the predecessor Act to the Act, that is the Defence Force Retirement Benefits Act 1948, section 53:
"…
The only matters which the respondent (and thus the AAT) may take into account in determining percentage of incapacity – and 'only' those – are set out in s 53(1A) referred to earlier. They do not include the ageing process or a depressed labour market or a state of unemployment or the shortage of employment for those who might engage in management.
…"
The full Federal Court in Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 adopted the same approach in a case involving the Act. Sheppard J (at 160) states that:
"…It is to be observed that the matters specified in s 34(1A) [materially identical to s 30(2)] as the matters to which the Authority is to have regard are the only matters with which the Authority is to be concerned. The subsection is exhaustive in this regard…"
Beaumont J in that case (at 171) states:
"…
It is the expressed intention of the legislation that the criteria mentioned in s 34(1A)(a) are to be exhaustive. It follows that considerations such as the criminal record of the member or his character or temperament are to be ignored for present purposes as merely collateral considerations notwithstanding their capacity to influence the member's prospects of obtaining employment in a particular case. Disqualifications of this kind fall outside the purview of s 34.
…"
For further support Respondent's counsel referred also to the decision of this tribunal in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424. Davies J said in that decision (at 434):
"…
Mr Thomson has worked in a wide variety of jobs and has considerable employment experience. The range of employment that would be available to him, apart from his impairment, is wide indeed. If it were not for the problem that he has with his left hand and wrist, Mr Thomson has the ability to undertake almost any task that does not require particular technical skills or substantial experience. His work history shows that he can do this. His experience would not limit him to being a sales assistant, a stores assistant, a credit officer or clerk, an upholsterer or a crewman of small ships.
In the light of these remarks, I turn now to consider Mr Thomson's percentage of incapacity in relation to civil employment brought about by reason of the physical or mental impairment I have described above [that is, an impaired left wrist].
It is necessary to put on one side the extent to which Mr Thomson's impairment has affected his engagement in the RAAF and his home, sporting and social life. The test looks only at incapacity in relation to civil employment.
…"
The final point made by Respondent's counsel was that on no occasion has Mr Walker left employment other than of his own accord, although the Applicant in his oral evidence disputed this to an extent as regards his employment with Mr McLean. Mr McLean's evidence is that the Applicant left Mr McLean's employment of his own accord. The Tribunal considers Mr McLean an impressive and serious witness who was completely credible. Mr Whithear said it was arguable that his difficulties with interpersonal relationships were a factor in his leaving various jobs but, even as late as 1995, Mr Wade (Document AR/236) suggested that Mr Walker had no substantial problems with interpersonal relations and that he was a satisfactory spare parts salesman.
Concluding submission
Mr Whithear therefore effectively pressed the Tribunal to find under section 30 of the Act that Mr Walker suffered from an adjustment disorder in 1982 which had a minimal if any effect on Mr Walker's capacity to undertake relevant kinds of civil employment. Mr Walker had therefore been properly classified as Class C and the Respondent's decision should be affirmed.
He argued in the alternative that, if the Tribunal finds against the Respondent in that regard, then under section 34 of the Act Mr Walker was certainly not impaired to any large extent after December 1982 until at least 1993. Mr Whithear suggested that, on the basis of Dr Heiner's evidence, possibly in 1993, but certainly by 1995, Mr Walker's incapacity was in Class A range under section 30(1) of the Act. However, Mr Whithear argued that Mr Walker's incapacity to that time was only Class C range. Mr Whithear observed that even on Mr Walker's own evidence, it was only after he went to see psychiatrists that he became dramatically worse.
The Applicant's response
In response to Mr Whithear, Mrs Walker picked up on Mr Whithear's point that Mr Walker's wrist problem is not relevant to any assessment under section 30 of the Act. It will be recalled that Mr McLean, the Applicant's former employer, said that Mr Walker's wrist injury was the reason he could not re-employ Mr Walker. Mrs Walker pointed out that Mr Walker's wrist disability is only minor and that he can work around it. The inference was that it was for other reasons that Mr McLean would not re-employ Mr Walker.
Mrs Walker pressed the Tribunal to consider the opinions expressed by Mr Weaver and Ms Scouller.
Mrs Walker argued that Doctors Davies, Mason and Heiner in fact agree that the Applicant initially suffered from an adjustment disorder that then became PTSD. She said that the symptoms were the same. The only disagreement is as to when the PTSD developed. The symptoms are similar for the two conditions. She suggested that they are effectively the one condition and that the different diagnoses amount to an exercise in semantics.
Mrs Walker emphasised that Mr Walker could work only in a workplace designed around Mr Walker's requirements for space and isolation as Mr McLean had provided.
Mrs Walker pointed out that Mr McLean in his evidence before the Tribunal had been reluctant to commit himself on Mr Walker's personality out of deference to Mr Walker's feelings. She submitted that his opinion must be extremely negative in that case.
THE TRIBUNAL'S FINDINGSThe Tribunal agrees with the methodology proposed by the Respondent as appropriate in dealing with a review involving the exercise of the power under section 37 of the Act to amend the ground of a former member's retirement and involving the application of section 30 of the Act.
This requires the Tribunal to give its attention to five matters in accordance with section 30. These are:
1) The Applicant's vocational, trade and professional skills, qualifications and experience pre-service, during service and post-service;
2)The kinds of employment a person with the skills, qualifications and experience of the Applicant could reasonably undertake;
3) The Applicant's invalidity or physical or mental incapacity at the time of his retirement;
4) The physical or mental impairment which caused the Applicant's invalidity or incapacity at the time of his retirement; and
The degree to which the determined impairment diminished the Applicant's capacity to undertake the kinds of civil employment referred to above.
The Applicant's vocational, trade and professional skills, qualifications and experience pre-service, during service and post-service
The Respondent submitted that these consisted of Mr Walker's completion of his School Certificate before leaving school in 1977 in first term of fifth form; his work as a driver attendant for several months, his work as a labourer in a chemical factory for several months, his unpaid work for about a year labouring in his uncle's sawmill, his work from April 1979 to late in 1981 in the army as a trainee mechanic and his post-army work as a mechanic, driver, cleaner and motor parts salesman. He attained a partial qualification as a motor mechanic in the army and obtained a full civilian qualification as a motor mechanic in 1984. He has been unemployed since 1995.
The Applicant did not dispute this summary and it is accepted by the Tribunal as accurate.
The kinds of employment a person with the skills, qualifications and experience of the Applicant could reasonably undertake
The Respondent submitted that the Applicant's vocational, trade and professional skills, qualifications and experience equip him to work in the following kinds of civil employment: tradesman's assistant (mechanic), sales assistant and labourer. The Applicant did not challenge this and the assessment is accepted by the Tribunal as accurate.
The Applicant's invalidity or physical or mental incapacity at the time of his retirement
The Respondent argued that the incapacity quoted by the army was expressed as follows: Mr Walker was:
"liable to inappropriate aggressive outbursts, was asocial and strongly independent with a good deal of hostility and aggression and was finding it difficult to accept his subordinate position. He was classified S3 under the PULHEEMS system of medical classification which prohibited his serving in a primary fighting role". (Document BY)
The Applicant did not accept this characterisation. The Applicant pointed to the evidence from Lt Col Andrews as to his satisfactory performance in the army prior to his assault. He also pointed out that Dr Mason's psychiatric assessment in October 1981 which contributed to this assessment of the Applicant was flawed because Dr Mason was unaware of the Applicant's favourable army record and of the assault committed upon the Applicant earlier that year.
The Tribunal notes the Applicant's views but accepts the analysis advanced by the Respondent that indicates that as a matter of law this issue is determined strictly by reference to the statement issued at the time by the army.
The physical or mental impairment which caused the Applicant's invalidity or incapacity at the time of his retirement
The Respondent submitted that the preferable diagnosis of the impairment that was the cause of the Applicant's invalidity or incapacity in 1981 was adjustment disorder as diagnosed in evidence by Drs Mason and Heiner. The alternative diagnosis is PTSD. PTSD is favoured by Dr Davies, Dr McCartney, Mr Walker's general practitioner, Mr A Weaver and Ms L Pearson, psychologists, and Ms S Scouller, a rehabilitation counsellor. PTSD was also the diagnosis applied by the Respondent itself.
This is an important issue because the incapacity classification applied under section 30 of the Act is tied to a named incapacity, here adjustment disorder or PTSD. Once a classification of Class A, B or C is then arrived at it can only be adjusted later under section 34 of the Act if the incapacity of the member for civilian employment is altered because of the impact of the physical or mental impairment nominated when the initial classification under section 30 occurred.
It was argued that Dr Mason's opinion should be accorded weight because he saw the Applicant not long before he was discharged. Dr Mason is an expert on PTSD because of the nature of his practice. Dr Mason considered that the Applicant's presentation in 1981 was not consistent with him suffering at the time from PTSD.
It was argued that Dr Heiner's assessment should be accorded weight because he is the Applicant's treating psychiatrist. This may be counterbalanced to an extent by the fact that, although Dr Heiner has been treating Mr Walker for over five years, he seemed to have an incomplete knowledge of Mr Walker's work history. Nevertheless the tribunal sees force in the argument that after five years treating Mr Walker he would be expected to have a superior understanding of Mr Walker's condition.
On the other hand the views of those who have diagnosed PTSD as the Applicant's condition at the time of discharge were impugned for various reasons by the Respondent. Dr McCartney, the Applicant's treating general practitioner, was not treating Mr Walker in 1981-1982 and her practice has no records relating to Mr Walker in that period. Dr Davies saw the Applicant only once and that was for a medico-legal opinion. It was argued that the psychologists' assessment provided by Mr Weaver and his student, Ms Pearson, should be accorded less weight than the views of Drs Mason and Heiner because they were influenced by Dr Heiner's earlier expressed views. As noted above, this is not strictly accurate as the Weaver/Pearson report predated Dr Heiner's report. However, the tribunal is nevertheless inclined to accord relatively less weight to this report. Arguably the views of a psychiatrist carry greater weight than those of a psychologist in relation to a psychiatric condition because a psychiatrist has medical qualifications. Secondly, Mr Weaver appears from Document P (dated 2 July 1994) to have seen Mr Walker for the first time on 10 June 1994, long after 1981-1982, the relevant time.
There is also the document, Document Z, a letter dated 22 May 1997 from Mr A Weaver to Mr Walker clarifying aspects of his earlier report in Document P. In this document Mr Weaver says:
"…
I do not recall you raising the assessment of compensation. The reference on the front of the report [in Document P] to you being self referred and requesting a P.T.S.D. assessment was a mistake on my part – I wasn't being careful in my wording in that section as I saw the whole assessment as a training exercise for my student.
…"
This letter may be read as reducing the cogency of Mr Weaver's assessment in Document P.
Ms Scouller, the rehabilitation counsellor, was thought to have favoured PTSD as the applicable diagnosis in 1981. However, her report concentrates on the position in 1996 when read fully.
The Applicant had argued on these issues that adjustment disorder and PTSD are related conditions and that is artificial and mere semantics to distinguish between them. Some of the medical evidence suggested that one condition can shade into and become the other, however it appeared to the tribunal that the doctors nevertheless identified the two conditions as differentiated, for example, under DSM-IV.
The Tribunal is inclined to accept the Respondent's submissions on this point if for the above reasons which are slightly different from those advanced for the Respondent by Mr Whithear. The tribunal therefore finds that the physical or mental impairment which caused the Applicant's incapacity at the time of his retirement was adjustment disorder.
The degree to which the determined impairment diminished the Applicant's capacity to undertake the kinds of civil employment referred to above
Mr Walker was discharged from the army on 11 January 1982. He did not work until 10 December 1982 when somewhat forced to do so by his mother. The degree to which the Applicant's determined impairment of adjustment disorder diminished his capacity to undertake civilian employment of the relevant kinds, that is tradesman's assistant (mechanic), sales assistant or labourer, was discussed by some of the doctors who provided evidence.
Dr Mason saw the Applicant as only minimally (less than ten per cent) restricted for work as "trades assistant" or sales assistant. He saw the Applicant as moderately (30 per cent - 60 per cent) restricted for work as a labourer. However, he explained that he gave a higher rating to incapacity for labouring work because Mr Walker might be demeaned by having to do such work. If no allowance is made for that factor, Mr Walker would be only minimally restricted for labouring work.
Dr Heiner tended to vacillate. Initially he considered that Mr Walker would not have been able to engage in civil employment immediately after discharge. He withdrew that opinion when it was suggested that Mr Walker commenced work with Mr McLean soon after leaving the army. However, when he learned that there was a gap of about 11 months between the date of Mr Walker's discharge and the date he commenced working for Mr McLean he seemed to reinstate his earlier opinion.
Dr Davies thought that Mr Walker's capacity for relevant kinds of civil employment was greatly restricted at first, and so in January 1982. However, he considered Mr Walker's capacity to have improved from when he commenced work for Mr McLean.
The Respondent submitted that the evidence as to Mr Walker's conduct at home soon after discharge and later was irrelevant. The point was accepted by the tribunal in general terms, however it must be the case that some domestic behaviour can indicate that a person with a psychiatric impairment might be a problem also at work. To that extent, evidence of asocial or antisocial home behaviour might be of relevance.
The Respondent argued that the Tribunal should accept Dr Mason's assessment. Again the fact that Dr Mason had some knowledge of the Applicant based on having seen him at the relevant time would support this argument. However, the evidence from Dr Mason also suggests that the Applicant was in a very bad frame of mind in October 1981. There is also the evidence of Mrs Walker, Lt Col Andrews and Mr Travis all of who dealt with Mr Walker at the relevant time. They all describe a very troubled individual. The assessment being performed at this point is not a medical assessment, although the views of doctors are relevant. The views of lay witnesses are equally relevant.
It appears to the Tribunal that Mr Walker's adjustment disorder seriously diminished his capacity to undertake civil employment of the relevant kinds when he was discharged from the army. However, this incapacity seems to have been reduced to little or nothing when he commenced working for Mr McLean late in 1982. The Respondent made a great deal of the argument that Mr Walker had never been sacked from a job. He had always left or gave up of his own accord. Certainly Mr Walker had several lengthy periods working for Mr McLean and, despite Mr Walker's suggestions that he had been sacked by Mr McLean, Mr McLean in his evidence denied this and spoke reasonably well of Mr Walker. He said he would re-employ him if he had full use of his wrist.
Mr Whithear submitted that, if the tribunal took this approach, it would seem that Mr Walker's capacity to work has declined in recent years, notably since he began to obtain psychiatric assistance. It was also suggested that Dr Heiner's opinion is that the uncertainty generated by the various attempts Mr Walker has made to obtain compensation of one sort or another over a number of years has generated many of Mr Walker's problems in recent years. Mr Whithear suggested that Mr Walker's condition since 1995 would probably merit a Class A classification. Mr Whithear argued against the selection of any earlier date because Mr Wade as late as 1997 provided a reference to the effect that, although Mr Walker complained that he suffered from work-related anxiety, he was in 1995 still a reliable employee with a generally outgoing personality with generally good relationships with customers and other employees.
It might therefore seem that Mr Walker should be assessed as having a Class A incapacity from 12 January 1982 until 9 December 1982 and then again from a date in 1995 until the present. However, this would involve applying section 34 of the Act. In order to reclassify Mr Walker in 1995 the impairment that would have to have deteriorated would, on the basis of the Tribunal's earlier finding, be adjustment disorder, the impairment that caused his retirement. The medical evidence strongly supports the proposition that Mr Walker developed PTSD some time after 1982. The classification cannot therefore be reviewed and raised to Class A in 1995.
DECISIONThe decision under review is set aside and in substitution therefor the Tribunal decides:
a) As of 11 January 1982, the Applicant's incapacity in relation to appropriate kinds of civil employment, trades assistant (mechanic), service station attendant and labourer, was 60 per cent or more, resulting in a Class A classification under section 30 of the Act.
b) In accordance with section 34 of the Act, on and from 10 December 1982, the Applicant's incapacity in relation to appropriate kinds of civil employment, trades assistant (mechanic), service station attendant and labourer, was nil.
I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella and
Commodore B G GibbsSigned: .....................................................................................
AssociateDate/s of Hearing 10 April 2000 and 26 May 2000
Date of Decision 13 September 2000
Representative for the Applicant Mrs L Walker
Counsel for the Respondent Mr R Whithear
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