Williams and Defence Force Retirement and Death Benefits Authority
[2004] AATA 863
•18 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 863
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2002/258
GENERAL ADMINISTRATIVE DIVISION ) Re GEOFFREY CLYNTON WILLIAMS Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Deputy President D G Jarvis and Mr D J Trowse and Dr E T Eriksen, Members Date18 August 2004
PlaceAdelaide
Decision The Tribunal varies the decision under review by specifying that the date from which the reclassification has effect shall be 17 November 1992, but otherwise affirms that decision. D.G. Jarvis
(Signed)
Deputy President
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY – classification of disability – determination of incapacity in relation to civil employment – effective date of reclassification – decision varied.
Defence Forces Retirement Benefits Act 1948 (Cth) s 51(2), s 53
Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761
Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156
Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791
Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 1 ALD 31
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 12 ALD 720; 6 AAR 424
REASONS FOR DECISION
18 August 2004 Deputy President D G Jarvis and Mr D J Trowse and Dr E T Eriksen, Members 1. The applicant served in the Royal Australian Army between 2 April 1968 and 5 August 1970, when he was discharged on the grounds that he was medically unfit due to a gross personality disorder. Having retired in these circumstances, he was entitled to benefit under Part V of the Defence Forces Retirement Benefits Act 1948 (Cth) (the “Act”) in accordance with the rate or amount of invalidity benefit provided for in that Part. Following his discharge from the Army, various determinations were made of the applicant’s percentage of total incapacity in relation to civil employment pursuant to s 51 of the Act. Initially he was classified as Class B, (which entailed an incapacity level of 30% - 60%) but on 29 May 1975 he was reclassified as Class C (entailing an incapacity level of less than 30%).
2. More than 24 years later, on 26 June 1999, the respondent was advised by the Department of Defence that the applicant had made inquiries about his entitlements. Following a subsequent request by the applicant to review his then Class C incapacity classification, the respondent, on 14 March 2000, decided pursuant to s 53 of the Act to increase his percentage incapacity to the highest classification, Class A, on and from 26 June 1999. On 5 October 2001, the applicant requested a reconsideration of this decision on the basis that his invalidity reclassification from Class C to Class A should take effect from 6 August 1970, rather than 26 June 1999. Upon reconsideration the respondent, on 4 July 2002, affirmed its earlier decision of 14 March 2000, after extending the time in which the request for reconsideration of the primary determination could be made. The applicant has applied to this Tribunal for review of the determination upon this reconsideration, which is a reviewable decision by virtue of s 99(6) of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the “DFRDB Act”).
3. Mr Christopher Swan of Swan Lawyers represented the applicant on the hearing before us. The respondent was represented by Mr Benjamin Dubé of the Australian Government Solicitor’s Office. The applicant gave evidence and also called two psychiatrists, Professor John Condon and Dr Roberta Steele. The respondent also called two psychiatrists, namely Dr Tony Davis and Dr J F Gill (who gave evidence by telephone). The applicant tendered the documents provided under s 37 of the Administrative Appeals Tribunal Act 1975 (exhibit A1), and both parties tendered a number of other documents, to which we will refer as appropriate later in these reasons. We have carefully considered all of the evidence and documents before us.
Issues
4. The issues to be determined are:
(a)what was the applicant’s degree of incapacity for civil employment, in percentage terms, as at 14 March 2000; and
(b)if the assessment of incapacity as at 14 March 2000 leads to a reclassification, from what date should that reclassification have effect.
Background Facts
5. The following background facts are based on oral or documentary evidence which was not contested.
6. The applicant was born on 15 March 1949. Following his discharge from the Army, a delegate of the Defence Force Retirement Benefits Board (the “DFRB Board”) determined under s 51 of the Act, on 23 September 1970, that the applicant’s degree of incapacity to undertake civil employment due to his gross personality disorder was Class B, effective from the date of his discharge; namely 6 August 1970 (exhibit A1, T12/17).
7. On 3 July 1972 and 16 July 1973, delegates of the DFRB Board reviewed the applicant’s invalidity classification under s 53 of the Act and determined that the applicant’s degree of incapacity continued to be Class B (exhibit A1, T20/28, T25/34).
8. Mr Williams failed to attend an examination by a specialist psychiatrist in Adelaide on 4 October 1974, and a notice under s 53B of the Act requiring him to attend for examination on 28 February 1975 was returned unclaimed. The applicant’s pension was accordingly withheld with effect from that date, pending contact from the applicant (see exhibit A1, T36/53).
9. At a meeting on 29 May 1975, the Committee of Alternates resolved to suspend the applicant’s pension under s 53B of the Act with effect on and from 28 February 1975, being the date from which his pension had been suspended because of his failure to attend the specialist examination. At the same meeting, the Committee further resolved that the applicant’s incapacity in relation to civil employment was 25% on and from 29 May 1975, and that he be reclassified under s 53 as Class C (exhibit A1, T29/41). This reclassification meant that his pension was terminated.
10. It appears that at about the time of the events leading to the suspension of his pension, the applicant moved from Adelaide to Brisbane. He notified the Department of Social Security of this in an undated letter, and the Department sent his letter on to the respondent on 19 June 1975 (exhibit A1, T31/44 and T26/35). The respondent then wrote to the applicant at his new address in Brisbane on 15 July 1975, and enclosed a copy of an earlier letter of 17 June 1975 advising of the decision made by the Committee of Alternates on 29 May 1975. The respondent also advised the applicant of arrangements being made for him to be examined by a specialist in Brisbane (exhibit A1, T33/46).
11. The applicant was then assessed by a Dr Murphy of the Brisbane Clinic on 15 August 1975, and he assessed the applicant’s percentage of incapacity in relation to civil employment at 30% for the present, and at 30% long term (exhibit A1, T35/49). Dr Murphy considered that Mr Williams was suffering from personality disorder, which was “(c)onstitutional in origin, aggravated by war service”. In his comments, Dr Murphy refers to problems in the applicant’s “relationship with people, bosses and his family” and refers to sensitivity to criticism and said that he was labile in his emotional responses (exhibit A1, T35/49).
12. Notwithstanding the assessment by Dr Murphy, at its meeting on 18 September 1975, the Committee of Alternates resolved that the applicant’s incapacity in relation to civil employment was 25% on and from 18 September 1975 (exhibit A1, T37/55). He was notified of this decision in a letter dated 22 September 1975 (exhibit A1, T38/56).
13. The applicant’s classification remained at Class C until the determination made by the respondent on 14 March 2000, which gave rise to these proceedings.
Legislation
14. Section 51 of the Act provides relevantly as follows:
“51(1) Subject to subsection (3) where:
(a)a member who is a contributor has been retired before attaining the retiring age for the rank held by him;
…
on the ground of invalidity or of physical or mental incapacity to perform his duties … he is entitled to benefit in accordance with sections 52, 52A and 53 … .”
Section 51(2) then provides for the Authority to determine the percentage of total incapacity in relation to civil employment and for the Authority to classify the member according to the percentage of incapacity as follows:
“Percentage of IncapacityClass
60 or over……………………………………….. A
30 or over but less than 60……………………. B
Less than 30 …………………………............... C”
Section 52 makes provision for the rate or amount of invalidity benefit.
15. Section 53 gives the Authority the power from time to time to reclassify a member in the appropriate classification set out in s 51(2). It provides relevantly as follows:
“53(1)The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a pensioner classified under section 51 is such that the classification of the pensioner should be altered, reclassify him in the appropriate classification set out in subsection 51(2) according to the percentage of his incapacity in relation to civil employment.
…
(1A)In determining:
(aa)what is the percentage of incapacity in relation to civil employment of a pensioner; or
…
the Authority shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the pensioner;
(b)the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c)the degree to which any physical or mental impairment of the pensioner, being a prescribed physical or mental impairment, has or had diminished the capacity of the pensioner to undertake the kinds of civil employment referred to in paragraph (b);
(d)such other matters (if any) as are prescribed for the purposes of this subsection.
(1B)In subsection (1A), prescribed physical or mental impairment, in relation to a pensioner or a deceased pensioner, means:
(a)a physical or mental impairment of the pensioner that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the pensioner was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b)any other physical or mental impairment of the pensioner causally connected with a physical or mental impairment referred to in paragraph (a).
(2)Where a person is reclassified under this section, the Authority shall specify the date from which the reclassification has effect and, on and after that date, the person shall, for the purposes of section 52, be deemed to be classified accordingly.
…
(4)In this section, pensioner includes a person who is classified as Class C by reason of his having been reclassified (whether before or after the commencement of this subsection) under subsection (1) of this section, whether or not the person is entitled to a pension.”
Evidence as to Applicant’s History of Incapacity for Civil Employment
16. The applicant gave evidence that he grew up in Adelaide and completed his schooling at Victor Harbor High School. He then had two jobs working on farms, and returned to Adelaide and started an air-conditioning apprenticeship. He later enrolled in the Army at the age of 18, and after completing his training was posted to Vietnam. He volunteered to be a forward scout. Unfortunately he led his patrol into an ambush. As a result two of his friends were killed in close proximity to him, and he witnessed their deaths. The applicant himself received a mortar wound in the elbow, and was hospitalised. He returned to Australia and then started having flashbacks and nightmares, and said that he “just couldn’t hold it together anymore” (transcript 23.9.03, page 32, line 26). He later tried to commit suicide and was hospitalised. After leaving hospital he was medically discharged from the Army.
17. Mr Williams also gave evidence of his recollection of the various jobs he had after his discharge from the Army in 1970 until 1992, when he finally ceased working. We will not attempt in these reasons to recount his evidence as to all of his different jobs between these years. The parties prepared a schedule, which is exhibit A2, which summarises the applicant’s employment history over this period. We understand that this history was prepared largely from various records included in the T Documents and from group certificates which the applicant had retained. The schedule, in some cases, includes the date or month when particular employment commenced and ceased, as well as the name of the employer and the applicant’s occupation. There are a number of gaps in the periods of employment when the applicant was not receiving unemployment benefits or where there were no group certificates, and counsel for the respondent invited us to infer that during some of the periods not accounted for, the applicant was working on a cash basis. We do not think that it is necessary for us to make any finding to this effect, in view of the determination we have arrived at as to the date from which the applicant’s reclassification to Class A should have effect. It is, however, significant to record that over the years from 1970 to 1993, according to exhibit A2, the applicant was engaged in employment in various occupations for 33 separate periods and with 31 different employers, followed by one period in 1992 when he was self-employed. Exhibit A2 also shows that there were periods, occasionally of a number of months’ duration, when the applicant was unemployed. Further, it appears that his longest period of employment in one position was from March 1976 until July 1977, a period of some 16 months.
18. The respondent contended that the applicant has the following vocational, trade and professional skills, qualifications and experience:
· primary and secondary education until 15 years of age;
· working as a jackeroo on farms in South Australia;
· working as an air-conditioner apprentice, but without completing his apprenticeship;
· service experience as a rifleman on tour in Vietnam; and
· post-service experience as a linesman, process worker, brasses worker, labourer, press-hand, guillotine operator, sheet-metal worker, welder, fibre-glasser, assistant custodian, spray-painter and demolder, filing clerk, security officer, foundry worker, night-packer (of grocery shelves), gardener and general hand.
The respondent further contended that the kinds of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake are general hand/labourer and fibre-glass worker. We think that these contentions are supported by the evidence before us. We accept these contentions and adopt them as our findings.
19. The applicant gave evidence as to the reasons why the various jobs came to an end. These reasons included aggression and abuse towards persons from whom he received directions at work; an unwillingness to take directions; losing control of himself and hitting people or his boss; conflicts with his co-workers; reactions of aggression to Asian people whom he encountered in some positions and, on occasions, assaulting such persons; and problems with alcohol. He said that other jobs came to an end for other reasons, such as staff retrenchments; an injury at work resulting in his being incapacitated for work; the collapse of one employer; the expiration or termination of employment contracts; and in one case, his concern about dishonest practices by his employer. However, we think it likely that in the majority of cases, his employment ceased because of his psychiatric condition, to which we will refer below.
20. It appears from exhibit A2 that the applicant’s last employment concluded on 4 December 1992, when he ceased working as a fibre-glasser. From records included in the T Documents, it also appears that the applicant had attended the Repatriation General Hospital at Daw Park (“RGH”) as an outpatient where he was assessed by a psychiatric registrar as suffering from post-traumatic stress disorder (“PTSD”). Soon afterwards, on 7 December 1992, Mr Williams was admitted to the hospital, and he remained there until his discharge on 17 December 1992. He has not worked since 4 December 1992. He has received the special rate pension under the Veterans’ Entitlements Act 1986 (Cth) since 1993. This is confirmed by exhibit A1, T60/179, being a copy of a determination made by a delegate of the Repatriation Commission to the effect that the special rate pension was granted from the first pension pay day on or after 21 September 1993.
21. Mr Williams attributed his difficulty with employment over the years until he finally ceased to work in 1992, to continual nightmares and flashbacks, and his need to cope with these difficulties by drinking alcohol and abusing drugs.
22. We found the applicant to be a truthful witness who did his best to recall relevant events extending over a very long period of time. We accept his evidence, except where it is inconsistent with our express findings, which in some areas we base on the documentary evidence before us in preference to the applicant’s attempted recollection of the matters concerned.
Medical Evidence
23. Professor Condon was asked to give a report on the applicant’s diagnosis and treatment in the RGH covering the period 1970 to 2002. He said that he interviewed Mr Williams before providing his first report, but made it clear that he had never been his treating psychiatrist; his brief was to review the case notes. His first report, date stamped 30 August 2002 and presumably written shortly before that date, briefly summarises these matters, and is supplemented by a further report date stamped 4 September 2003 (exhibit A4). The issue canvassed in both reports is whether Mr Williams had suffered from PTSD since his return from Vietnam. Professor Condon concluded that this was the case, and gave evidence as to the evolution of the recognition by psychiatrists of the condition of PTSD as the appropriate diagnosis for persons suffering from the relevant symptoms as a result of their experiences in Vietnam. He records in exhibit A4 that PTSD was not listed in the Diagnostic & Statistical Manual of the American Psychiatrist Association until 1980. He said further that there are a number of authorities on the history of psychiatry which state that in the 1970s, PTSD was most frequently diagnosed as “personality disorder”, and the flashbacks (now recognised as symptoms of PTSD) were diagnosed as “conversion reactions”. Professor Condon considered that Mr Williams had suffered from severe PTSD since 1970.
24. Professor Condon said that he had not assessed Mr Williams’ employability, but said:
“Only through the severity of the symptoms as described in the case-notes and on the basis of that, I would have thought that if the material in the case-notes is correct in terms of the PTSD that he was suffering during the 70s and 80s and 90s it would have been very difficult for him to hold down a steady job, but really we are looking at retrospective bits and pieces and to try and put that together and be dogmatic about it I think it is very, very difficult. I mean, you know it is hard enough to assess disability cross-sectionally in the here and now when the patient is in front of you but to try and go back 20/30 years and say well: how disabled was somebody 20 or 30 years ago, is very difficult.” (transcript 23.9.03, page 79, line 9).
The Professor agreed that as a group Vietnam veterans tend to have a lot of difficulties with authority figures.
25. The Tribunal requested that a report be obtained by Dr Roberta Steele, in view of her involvement as a treating psychiatrist at various times in the 1970’s and 1980’s. She provided a report dated 11 November 2003 (which is exhibit A8) after reviewing the RGH notes from 16 November 1976 to 2 August 1988. She first examined Mr Williams in January 1972, but she reported that unfortunately her notes of her original assessment were not available. From perusing the RGH notes, she said that when she saw Mr Williams in the 1970’s and 1980’s the focus of the discussion concerned the interpersonal relationship with his spouse of the time, and there was some discussion about the problems he was experiencing at work. She concludes in her report:
“Looking back on my notes, I cannot be certain of his degree of Incapacity but I believe that his Incapacity was greater than 60%. Mr Williams found it very difficult to continue in employment because of his hyperarousal and his problems in facing stressful situations. I believe that when he did work, he was working at a job that was paying less than his potential and again, this may well have been due to his incapacity.”
26. In her evidence before us, Dr Steele referred to the applicant having had “a very good time” when she saw him in July 1977 (transcript 25.3.04, page 9, line 19). She also agreed in cross-examination that from the time when she first saw Mr Williams in 1972 to when she saw him in 1982, he was maturing and becoming better, but she said that this did not happen smoothly. She said that people with PTSD can do quite well for a while, and then their disorder comes up again and then it can go away again, and over a 25 or 30 year period she was often surprised at the good patches people have.
27. Dr Steele considered that the diagnosis at the time of his discharge from the Army of a psychopathic personal trait aggravated by war service would not now be appropriate, and he would now be diagnosed as having PTSD.
28. Dr Gill provided a report to the respondent dated 23 February 2000 (exhibit A1, T90/227). He concludes in paragraph numbered 1 of his written report:
“Mr Williams condition over the past 30 years suggests that he is incapable of maintaining any form of employment. His employability is diminished on account of the pervasive and constant nature of his psychiatric disturbance.” (exhibit A1, T90/232).
In an apparent contradiction of this conclusion, he then proceeds in the next paragraph of his report to say that in his opinion, Mr Williams’ listed impairment of gross personality disorder had diminished his capacity to undertake the work of a general hand/labourer and the work of a fibre glass worker to a moderate extent of 35%.
29. In cross-examination, and after reviewing the schedule showing the applicant’s employment history from 1970 to 1992 (exhibit A2), and after being informed that the applicant had become a TPI pensioner in 1993, Dr Gill accepted that it would probably be fair to give Mr Williams a 60% rating. However, he did not address the issue of the extent of Mr William’s incapacity during periods earlier than the date of his examination, being 18 February 2000. Dr Gill conceded in cross-examination that whilst the brief that he was given referred to an impairment of gross personality disorder, he considered that Mr Williams was suffering from PTSD.
30. Dr Davis provided two reports, which are exhibit R1, and are dated 9 July 2003 and 16 September 2003 respectively. His second report was provided after he had read Mr Williams’ Army file and the report provided by Professor Condon. As a result of this further material, Dr Davis agreed that it was “quite possible” that Mr Williams had some symptoms of PTSD from 1970 onwards. He also agreed that it was “possible” that Mr Williams’ PTSD played some part in his ongoing difficulties with employment between 1970 and 1992, although he maintained his earlier view that most of his difficulties were caused by his personality disorder.
31. As to his level of incapacity for employment, Dr Davis considered that this was of a moderate extent of 35% from 1992 to 1998, and of a more severe extent thereafter, following a deterioration of function in late 1998. He agreed with the respondent’s assessment that as at 26 June 1999 his impairment had been severe and greater than 60%.
32. In his evidence, Dr Davis referred to Mr Williams having had a number of presentations to the RGH between 1992 and 1998 and said (mistakenly) that he was not hospitalised (transcript 23.9.03, page 92, line 35). In Dr Davis’ assessment, there had been an escalation of symptoms over time, commencing with a mild degree of incapacity up to about 1992, then an increase to moderate incapacity until 1998, and then a severe degree of incapacity. In cross-examination, he said that the applicant appeared to have been overwhelmed by PTSD symptoms from 1999 onwards. He conceded that that might have been the case from 1992, but he said that he did not have the material to substantiate this. He agreed that it was difficult to “go back” when assessing the applicant (transcript 23.09.03, page 95, line 35).
Consideration
33. On the evidence before us, we are satisfied that the applicant was correctly reclassified as Class A, and we affirm the respondent’s determination that the percentage of total incapacity of the applicant in relation to civil employment was 60% or over. In this regard, we find that it is immaterial whether the applicant’s incapacity arose from a personality disorder or (as was more likely on the evidence before us) PTSD or a combination of both, because all or any of those causes would constitute a “prescribed physical or mental impairment” within the meaning of s 53(1B) of the Act.
34. The applicant contends that the reclassification to Class A should have taken effect as at 1970, or at the latest, 1975. As mentioned above, the Committee of Alternates made decisions on 23 September 1970, 3 July 1972 and 16 July 1973, but this Tribunal has no jurisdiction to review those decisions, as they were not “decisions of the Authority” within the meaning of s 99 of the Act. We refer in this regard to Re Davina and Defence Force Retirement and Death Benefits Authority (1996) 43 ALD 761, where Deputy President Forgie summarised the legislative history leading to the establishment of the Authority. In any event, the issue before us is not to review those earlier decisions, but to determine the date from which the reclassification from Class C to Class A should take effect.
35. The respondent further submitted that under s 53(2) of the Act, where a person was reclassified under s 53, the Authority (and on review, this Tribunal) was required to specify the date from which the reclassification has effect, and this did not permit the decision-maker to fix two or more effective dates, with different classifications applicable to an earlier period of time. In other words, the Tribunal could not “cycle”, as the respondent put it, between different classifications, by reclassifying the applicant as Class A retrospectively to a date determined by the Tribunal, and then determining that the applicant had a lower level of incapacity for some earlier period prior to that date. We accept this submission, and consider that this is the clear effect of the words used in s 53 of the Act. This section contains a power to reclassify, and if this power is exercised, the decision-maker is required to specify the date from which this reclassification has effect. Whilst the power to reclassify may, of course, be exercised from time to time, an exercise of the power contemplates one reclassification from an effective date which is to be determined; the section does not authorise the decision-maker when the power to reclassify is exercised, to make a series of reclassifications in respect of different periods.
36. We turn to the more difficult issue of whether the 60% or over level of incapacity has existed from a date prior to 14 March 2000. It is competent for us to take account of later evidence, to the extent that such evidence may be illustrative of the applicant’s state of health at an earlier date: Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58 at page N60. Section 53(1A) of the Act sets out the only criteria to which we may have regard in determining the percentage of incapacity of the applicant when considering the appropriate commencing date, and no other considerations may be taken into account: Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138; Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156. In House, the Full Court of the Federal Court (Davies, Burchett and Hill JJ), when considering s 34(b) of the DFRDB Act, which sub-section is in identical terms to s 53(1A)(b) of the Act, decided that the relevant test was an objective one, and said (at page 141):
“… the primary question posed by paragraph (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’.”
37. In Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 at 792 the Tribunal also considered s 34 of the DFRDB Act, and said that the only matters the Tribunal may take into account in determining the percentage of incapacity are those referred to in that provision, and that accordingly, the Tribunal could not take into account the ageing process, a depressed labour market, a state of unemployment, the shortage of employment for those who might engage in a particular occupation, circumstances foreseeable only in the long term unless made appropriate, or prevention of continuance of non-civil employment.
38. The fact that a particular member is actually employed is not determinative of his or her percentage of incapacity: Freeman (supra). In that case, Sheppard J (with whom Sweeney J) agreed, said (at 164):
“The Act itself takes no account of his actual earning capacity at a given time, although the fact that he has engaged in particular employment will be a relevant factor for the Authority to consider when determining his percentage of incapacity. But there may be cases where, although a member is employed, he is doing his work with such difficulty or under such stressful circumstances that it is plain that he has not any real capacity for it. The fact that he is in employment may be due to the kindness of an employer or of fellow employees or both, or because of his ability, at least for the time being, to mask his disabling condition.”
A similar proposition was referred to by Beaumont J at page 169.7.
39. We also note that the concept of incapacity in relation to civil employment is different from the issue of an ability to earn an income, and evidence of the amount of an applicant’s earnings, whilst it may be of some relevance, is not determinative. We refer in this regard to Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 1 ALD 31 at page 34.3, where the Tribunal presided over by Brennan J as he then was, said:
“‘Incapacity’ in relation to civil employment thus comprehends an incapacity in relation to the engagement of the person to work and in relation to the earning of remuneration and other work-associated benefits. Diminution in earnings is not the only criterion for determining the percentage of that incapacity – indeed there may be cases where there is a substantial incapacity affecting the employability of a person entitled to benefit which does not produce any, or any significant, effect upon his earnings. On the other hand, a relatively minor diminution in employability may entail a large loss of income, and occasion a substantial percentage incapacity. ‘Incapacity in relation to civil employment’ is a wider concept than the ‘ability to earn income’. An ‘incapacity’ may be said to be ‘in relation to’ civil employment if the opportunities to engage in civil employment and to derive benefits from that employment are restricted by reason of the incapacity.”
40. In Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 12 ALD 720; 6 AAR 424 at 433, Davies J said:
“The width of the range in employment opportunity is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but it may preclude the person from working more than part-time or intermittently. Thus the determination of a percentage is not to be undertaken as if it were a mathematical calculation. Rather, it is a value judgment of the extent to which, expressed in percentage terms, and taking into account only the matters set out in s 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment.”
41. It is difficult from the evidence before us to arrive at the effective date of the reclassification to Class A. We have referred above to the evidence of Dr Steele, in which she described the applicant’s condition and estimated his percentage incapacity at 60%. She last saw him in August 1988. However, the date which Dr Steele was referring to when making that assessment is not clear from her report (exhibit A8) or from her evidence. It is apparent from her notes and from her cross-examination that in her assessment, Mr Williams’ condition varied from time to time, and that there was a gradual improvement in his condition from 1977 to 1988. It also appears that at the time of some of his consultations with Dr Steele the applicant also had concerns arising out of interpersonal relationships and domestic problems (see exhibit A1, T48/77). Dr Steele was not asked at the time of the various consultations to assess his percentage incapacity in relation to civil employment; it appears that she was first asked to consider that issue in the letter from the applicant’s solicitors to her of 9 October 2003 (exhibit A7). However, it is not clear that Dr Steele made her assessment by reference to the specific criteria set out in s 53(1A) of the Act.
42. It also appears from the RGH notes that Mr Williams did not seek further psychiatric assistance for more than four years after he last saw Dr Steele. In the meantime, he continued to work, although spasmodically, and according to his employment history (exhibit A2), had worked almost continuously for about 12 months before his visit to the Outpatients Department of RGH on 17 November 1992 (although we appreciate that his engaging in employment is not decisive, as mentioned in Freeman (supra)). We note that Dr Steele took into account when assessing incapacity her view that Mr Williams was working at a job which was paying less than his potential, but it is not clear what she based the comment on, or that she took into account the evidence of the applicant’s unsatisfactory school record. Having regard to all of the above matters, we do not accept Dr Steele’s assessment as evidence that the applicant had a 60% level of total incapacity in relation to civil employment as at August 1988. Further, we are not satisfied on the evidence before us that Mr Williams’ percentage incapacity was 60% or more as at that date or at a date earlier than that date.
43. As already mentioned, the applicant presented again at the RGH on 17 November 1992, and there is no medical evidence before us as to his condition between August 1988 and the date of that consultation. Dr Parry of the RGH prepared a report dated 17 November 1992 to the applicant’s then general practitioner, Dr Chan of Brighton (exhibit A1, T51/91). The report refers to Mr Williams’ PTSD, his alcohol dependency, his abuse of marijuana and his depressive symptoms, and indicates that his prognosis was poor to fair. It also refers to the possibility of a crisis admission to hospital. In fact, as mentioned above, the applicant was admitted to the hospital quite soon afterwards, on 7 December 1992, and he remained in hospital until 17 December 1992. He had ceased working on 4 December 1992, and has not worked since then.
44. We note that in a report incorrectly dated 2 February 1992, and which should have been dated 2 February 1993, Dr Hoff, a visiting psychiatrist to the RGH, reported to Dr Chan that as at 29 January 1993, Mr Williams’ chief complaint was that he was “very edgy, can’t handle society anymore - depressed, suicidal, lack of memory, gets aggravated very easily” (exhibit A1, T50/90). In a later report of 2 July 1993, Dr Hoff reported that he was seeing Mr Williams at fortnightly intervals for a 30 minute appointment, and that he “tends to be housebound – ‘scared of what’s out there’” (exhibit A1, T57/155).
45. As mentioned above, Mr Williams was granted the special rate pension in September 1993, although this is not, of course, determinative of his rights under s 53 of the Act, as his entitlement to the special rate pension involved different assessment criteria.
46. The RGH notes and records indicate continuing difficulties arising from the applicant’s PTSD, and there were periods of hospitalisation at the RGH in April 1995, April 1996 (when he completed the RGH PTSD program), March 1998, August 1998, October 2001 and May 2002. We also note that on 12 November 1998, Dr Czechowicz reported that in his opinion, the applicant would never work again (exhibit A1, T74/205).
47. Taking into account the information in the RGH records, including the particular matters to which we have referred above, as well as the medical evidence presented to us on the hearing of this matter, we consider that the date from which the reclassification to Class A should have effect should be 17 November 1992, when the applicant presented again to the RGH as an out-patient, giving rise to the assessment by Dr Parry to which we have referred above.
Decision
48. For the above reasons, we vary the decision under review by specifying that the date from which the reclassification has effect shall be 17 November 1992, but otherwise affirm that decision.
I certify that the 48 preceding paragraphs are a true
copy of the reasons for the decision herein of
Deputy President D G Jarvis and Mr D J Trowse and
Dr E T Eriksen, MembersSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 23 and 24 September 2003, 7 November 2003 and 6 April 2004
Date of Decision 18 August 2004
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
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