Wilson and Defence Force Retirement and Death Benefits Authority

[2010] AATA 356

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 356

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3657

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL WILSON

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member

Date13 May 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

................[Sgd]..............................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Benefits and Entitlements – Applicant a member of the Defence Force Retirement and Death Benefits Scheme – Applicant impaired by post traumatic stress disorder – Applicant’s vocational, trade and professional skills, qualifications and experience – The kinds of civil employment which applicant might reasonably have undertaken are labourer and truck driver  - Applicant’s capacity to undertake that employment diminished to a small degree (below 30%) - Decision affirmed

Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 2, 26, 30, 37
Veterans’ Entitlement Act 1976 (Cth)

Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286

REASONS FOR DECISION

13 May 2010 Mr R G Kenny, Senior Member    

BACKGROUND

1. Paul Wilson served in the Australian Army from 11 January 1977 until 15 August 1980 when he was administratively discharged. Under s 37 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (the Act), the Defence Force Retirement and Death Benefits Authority (the Authority) determined, on 20 October 2008, that he should be treated as though he had been discharged on invalidity grounds. On 22 December 2008, the Authority determined under s 30 of the Act that, at the time of his discharge, Mr Wilson’s retiring impairment was from post traumatic stress disorder and that the relevant kinds of civilian employment which a person with his skills, qualifications and experience could reasonably undertake were automobile driver and general clerk. It determined that his physical or mental capacity in relation to the relevant types of civilian employment was 15% Class C. On 17 July 2009, that decision was varied in so far as it related to the kinds of civilian employment which a person with Mr Wilson’s skills, qualifications and experience could reasonably undertake by substituting truck driver and labourer. In other respects, the decision was unchanged.

LEGISLATION AND ISSUES

2.      The Act establishes a scheme for payment of an invalidity benefit to a member who was retired on the ground of invalidity[1].  It is not in dispute that Mr Wilson is a member of the scheme[2] or that he receives an invalidity benefit under the Act.  As he is entitled to receive an invalidity benefit, the Authority is required to determine his percentage of incapacity in relation to civil employment and to classify him according to the percentage of incapacity as follows[3]:

[1] See s 26 of the Act.

[2] See s 3(1) of the Act.

[3] See s 30(1) of the Act.

Percentage of Incapacity	Class
60% or more	A
30% or more but less than 60%	B
Less than 30%	C

3.      In determining the percentage of incapacity in relation to civil employment, the Authority is to have regard to the following matters only[4]:

(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.

[4] See s 30(2) of the Act and Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286.

4.      The only issue for determination is whether the degree of Mr Wilson’s incapacity from his post traumatic stress disorder was Class C or higher as at the time of his discharge.

SUBMISSIONS

5.      For Mr Wilson, Bob Fittler submitted that the appropriate classification in this matter was, at least, Class B.  He noted that family problems were referred to by Mr Wilson in 1980 as a reason for seeking to be discharged from the Army.  He submitted that this was not the real reason for seeking a discharge and that the undisclosed reason was that he was unable to continue in the Army because of the effects of his post traumatic stress disorder.  Mr Fittler accepted that the kinds of civil employment which Mr Wilson, with his skills, qualifications and experience, might reasonably have undertaken were as a truck driver or labourer.  However, he submitted that, because of his post traumatic stress disorder, Mr Wilson’s capacity to undertake that work was severely limited and that Mr Wilson’s assessment at the time of discharge should be at least Class B at 30-59% and that, because there had been deterioration, it was currently Class A at 100%.  Mr Fittler submitted that, in assessing incapacity, reliance should not be placed on the reports of psychiatrists Dr Curtis Gray or Dr Christopher Slack because neither of them had seen Mr Wilson and their reports were based on documentation only.  He submitted that the relevant evidence was that of Mr Wilson’s treating psychiatrist; Dr Perce Tucker. 

6.      For the Authority, Andrew Dillon submitted that Mr Wilson’s impairment was from post traumatic stress disorder and that the appropriate forms of civil employment to be considered in this matter were labourer and truck driver.  He submitted that, at the time of Mr Wilson’s discharge, there was no evidence of post traumatic stress disorder symptoms such as to reduce Mr Wilson’s incapacity in those forms of employment above the 29% threshold for Class C under s 30 of the Act.

Evidence (Mr Wilson and Documentary Material) 

7.      In August 1977, Mr Wilson qualified in the Army as a field engineer which included training in the use and clearing of explosives, truck driving and engineering tasks such as bridge building.  A course report at that time described him as a “below average soldier who lacks concentration and attention to detail”.  Shortly after, on 24 August 1977, a request by Mr Wilson for a discharge from the Army because he missed his family was rejected by his commanding officer.

8.      In June 1978, he was posted to Guadalcanal to assist, for four days, in the location, excavation and disposal at sea of unexploded World War 2 ordnance.  Because of concern about accidental detonations, he found this work stressful and it is this which he considers to be the cause of his post traumatic stress disorder. 

9.      After returning to Australia from Guadalcanal, various reports appear in his service records.  In August 1978, he completed a skills course where it was noted that he was keen to learn, had difficulty in retaining theory but had potential to be a good soldier.  In January 1979, Mr Wilson completed a statement in which he indicated that he would like to be transferred to Queensland where most of his family was then living.  However, at that time, he also declared a willingness to undertake a trade, such as driving or plant operation, and to re-engage in the Army in 1983.  A report by his commanding officer in February 1979 described him in favourable terms and recommended him for a driver course.  In April 1979, his commanding officer completed a report in which he described Mr Wilson as being of “sound military character” and “competent to perform the tasks of his rank”.  Mr Wilson completed his driver course in November 1979 and obtained a truck driving licence.  The associated course report noted that he had “applied himself well in all practical aspects”.

10.     Later in 1979 and in 1980, Mr Wilson again requested a discharge on compassionate grounds.  This was expressed in terms of his desire to be with his family due to his mother’s deteriorating health and to marital problems experienced by his sister.  His application was supported, in March and April 1980, by representations from a member of Parliament to the Defence Minister, a letter from his mother and three medical certificates from the family doctor describing Mr Wilson’s mother as having severe hypertension and “frequent severe pain and constant marked disability” from osteoarthritic spinal problems.  In one report, the doctor described Mr Wilson as suffering from anxiety because of his family concerns.  Mr Wilson’s mother and sister were both interviewed by Army personnel in relation to Mr Wilson’s application for discharge.  In addition, a letter in March 1980 from a potential employer advised that a position was available to Mr Wilson if he were to be discharged.  In his evidence, Mr Wilson confirmed that the various reports concerning his mother and sister were accurate and that he had real concern at the time for their welfare.

11.     Mr Wilson formally applied for discharge on 21 April 1980.  Again, he nominated the problems of his mother and sister and the prospects of civil employment as the reason for doing so.  Mr Wilson had a consultation in April 1980 with psychiatrist Dr Grady who, in his report, detailed Mr Wilson’s family problems and also wrote that the real reason for Mr Wilson wanting to leave the Army was that he had a change of mind about an Army career, felt shame in admitting that and therefore “tried to get out”.  Dr Grady reported that there was no real psychiatric disorder present but he described Mr Wilson as emotionally immature and not able to cope with the demands of military life.  He recommended an administrative discharge.  A report from Mr Wilson’s commanding officer, dated 6 May 1980, also recommended his discharge.  There, it was noted that, although Mr Wilson’s attitude to authority and his general conduct had been good, his “efficiency was poor as a direct result of his current personal problems” with a deterioration in attitude to Army life over the previous six months.  A medical examination record in August 1980, shortly before discharge, referred to the psychiatrist’s report as indicating no psychiatric disability and also referred to Mr Wilson’s sister and brother as having recent nervous breakdowns.  At his Final Medical Board on 8 August 1980, Mr Wilson remained classified as “FE”.  Mr Wilson’s formal discharge form described him as being “not suited to be a soldier”.

12.     Mr Wilson said that the reason he wanted a discharge from the Army in 1980 was that he was not coping with aspects of his service due to the lingering effects of his experiences with unexploded ordnance on Guadalcanal.  He said that he did not disclose those feelings about his service because he did not wish to be branded as a malingerer who would face harassment from other soldiers, especially those with operational service experience in South Vietnam.  For that reason, he used his family circumstances as the reason for seeking discharge.

13.     After leaving the Army, Mr Wilson chose not to take up the employment option which had been advised to the Army authorities.  He said that the letter advising available employment had been from a family friend and was not genuine.  He remained in the Sydney area for about 12 months where he worked as a labourer with a local Council.  He left that job because he moved to Brisbane to be close to his family where he spent 12 months working with his brother in law as a labourer.  He was unemployed for some months before working as a chainman for a surveyor for four years to 1987.  He then worked as a labourer for Logan Shire Council for about two years but resigned to take up a similar job with the Redlands Shire Council because it was closer to where he lived and reduced his travelling time.  He worked there until 1997.  In 1994, he was involved in an incident involving the use of equipment and, shortly after this; he was assigned truck-driving duties for three or four years.  Mr Wilson described inter-personal problems with fellow employees and supervisors during these years and said that his assignment as a driver was because he had been involved in disputes with other workers.  His driving duties with the Redlands Council were with a road maintenance truck which included working with two other crew members.  He had obtained a civilian truck driver licence while he was still in the Army, lost it when convicted of driving under the influence of alcohol in 1983 and reapplied for it in 1994 to take up the Council driving position.  Mr Wilson ceased work for the Council in March 1997 and has not worked since.  His evidence was that he suffered a “nervous breakdown” at that time. 

14.     In October 1997, Mr Wilson lodged a claim under the Veterans’ Entitlement Act 1976 (Cth) for anxiety/depression on the basis of the stressful events he experienced on Guadalcanal.  Eventually, in June 2000, this resulted in acceptance of post traumatic stress disorder as a service-related disability.  In his claim form, he wrote that he first became aware of symptoms in 1990 and had an aggravation of these in 1994.  In a statement dated 8 May 2003, Mr Wilson wrote that his psychological condition worsened totally in 1994 to the extent that he sought treatment.  A report from his local medical practice noted that he was treated for “stress/anxiety/depression” in that year with anti-depressant medication being prescribed. 

15.     In addition to his civilian employment, Mr Wilson enlisted in the Army Reserve in 1987.  He nominated his employment at that time as “chainman”.  His medical assessment, which included a psychiatric examination, at that time was that he was “FE” which, he agreed, meant “fit everywhere”.  In November 1987, Mr Wilson commenced but was unable to complete an Army clerical course and he was described as having “lacked comprehension to adapt to the requirements of the course”.  A report from his commanding officer in December 1987 described Mr Wilson as having attended a general duties course where he was placed in charge of four other soldiers, as displaying “potential for future development for good leadership qualities”, as being an “industrious and willing worker” and as setting a “good example for others to follow”.  Mr Wilson said that the responsibility that he undertook for other soldiers in the Army Reserve was only for a short period, was in respect of new recruits for their basic skill training in such matters as parade drill and was imposed on him only because of his previous experience in the Army.  At his request, Mr Wilson was discharged from the Army Reserve in May 1989.

16.     In evidence was a statutory declaration, dated 26 May 1997, from Mr Wilson’s mother.  She wrote that, after he joined the Army, she had noticed change in Mr Wilson after he returned from overseas where he was involved with bomb clearing.

Evidence (Medical) 

17.     Oral evidence was given by Dr Gray, Dr Slack and Dr Tucker.  The reports of Dr Gray and Dr Slack, dated 25 May 2009 and 16 December 2008, respectively, were based on their analyses of the file material relating to Mr Wilson.  Dr Tucker has treated Mr Wilson since 1997 and he provided reports dated 24 July 1997, 22 June 1998, 27 April 2000, 11 May 2005, 30 October 2006 and 23 February 2009.

18.     Dr Gray felt that he was able to make an accurate assessment of Mr Wilson through the detailed documentation he had been able to rely on.  He accepted that Mr Wilson had demonstrated some symptoms of post traumatic stress disorder at the time of his discharge from the Army but described the condition as having deteriorated subsequently.  His opinion was that Mr Wilson would have been able to work as a labourer and as a driver in 1980 and noted that he had been engaged in both capacities in post service years.  He conceded, in response to questions from Mr Fittler, that it was possible that Mr Wilson’s incapacity to drive a truck was above 30% in 1980.  However, he confirmed that this was not likely or even probable.  His conclusion was that that Mr Wilson demonstrated a small (less than 30%) degree of impairment for work as a labourer or truck driver at the time of his discharge from the Army in 1980. 

19.     Dr Slack agreed with the diagnosis of post traumatic stress disorder at the time of discharge in 1980 but was also of the opinion that Mr Wilson’s incapacity at that time was small, being less that 30%, at that time.  Of significance to Dr Slack was Mr Wilson’s ability to remain employed for some years after his discharge.

20.     Dr Tucker has treated Mr Wilson since 1997 and his opinion was that this placed him in a better position to assess him than would be the case if he had only consulted file material about him.  He diagnosed post traumatic stress disorder on the basis of the events that occurred to Mr Wilson on Guadalcanal and considered that he had experienced symptoms of the condition in the following years while he was still in the Army.  He disagreed with the reference to Mr Wilson being emotionally immature at that time, identifying the responsible work he had done during and after his Army service.  He was aware of the grounds advanced by Mr Wilson for obtaining his Army discharge and agreed that these family concerns were affecting him at the time.  However, he considered that effects of his post traumatic stress disorder meant that the family matters had an increased impact upon him.  He described Mr Wilson’s post traumatic stress disorder symptoms as becoming more severe and persistent over the years to the 1990s when treatment commenced.  He considered that Mr Wilson’s record of many short term jobs in post-service years demonstrated the presence of post traumatic stress disorder from 1980 onwards. 

21.     Dr Tucker denied that there was any element of speculation involved in his making an assessment of Mr Wilson’s capacity, as it was in 1980, to work as a labourer or truck driver.

22.     Dr Tucker did not consider post traumatic stress disorder to be a condition of delayed onset but one where the condition is present from the initial stages of the stressor.  While present from the time, he described the symptoms as often being masked by the patient through various coping mechanisms such as the use of alcohol, avoidance of stress and even inaction.  However, he described these mechanisms as being unsustainable in the long term with the symptoms gradually becoming increasingly apparent.  He considered that Mr Wilson’s symptoms became more severe because of the absence of any treatment from 1978 to the 1990s.

23.     Dr Tucker also said that Mr Wilson’s reliance on the family traumas for seeking a discharge was a face-saving exercise.  This was done by him to avoid exposure to peer criticism for complaining about the events that occurred at Guadalcanal[5].  

[5] See Dr Tucker’s report, dated 30 October 2006, at T40.

24.     In his final report, Dr Tucker again referred to Mr Wilson’s post-service problems in finding and keeping jobs because of his post traumatic stress disorder.  He wrote that, for all positions held by him after leaving the Army until his final position as a truck driver, his incapacity assessment was 30% to less than 60%. 

25.     Mr Wilson was also seen by psychiatrist, Dr George Freed, as part of processing of his claim with the Department of Veterans Affairs.  Dr Freed completed a report on 17 April 1996 while Mr Wilson was still employed as a driver by the Redlands Shire Council.  He noted that Mr Wilson had worked for the Council for almost seven years with the latter part of that as a truck driver.  He wrote that Mr Wilson advised him that he had been coping somewhat better since he took up the truck driving.

CONSIDERATION

26.     It is not disputed, and I am satisfied, that, on the basis of Mr Wilson’s vocational, trade and professional skills, qualifications and experience[6], the kinds of civil employment which he might reasonably have undertaken[7] are as a labourer and a truck driver.  These were the focus in the decision under review and were nominated by Mr Wilson as his usual types of employment in an Employee Report signed by him on 2 March 2000.  Again, it is not disputed, and I am satisfied, that Mr Wilson’s impairment, which was retrospectively deemed to have caused the incapacity[8] because of which he was discharged from the Army, is from post traumatic stress disorder.  What has to be determined is the degree to which Mr Wilson’s impairment had diminished his capacity to undertake civil employment as a labourer or truck driver at the time of his discharge.

[6] See s 30(2)(a) of the Act.

[7] See s 30(2)(b) of the Act.

[8] See s 30(2)(c) of the Act.

27.     Much of the submission made by Mr Fittler was related to the underlying cause of Mr Wilson’s instability in the period leading up to his discharge.  His contention was that this was due to the effect of the events on Guadalcanal; that Mr Wilson did not reveal this because of his perception of how he would be treated by other soldiers; and that, because of that perception, he relied on family matters to provide compassionate grounds for leaving the Army.

28.     Mr Wilson’s service documentation for the period immediately after his return from Guadalcanal does not reflect deterioration in his functioning as a soldier at that time.  He received favourable comment in August 1978 when he completed a skills course; in January 1979 when he sought to take up a trade in the Army and indicated a desire to re-engage in the Army in 1983; in February 1979 when his commanding officer recommended him for a driver course; in April 1979 when his commanding officer described him as being of “sound military character” and “competent to perform the tasks of his rank”; and in November 1979 when he completed his driver course having “applied himself well in all practical aspects”[9]. 

[9] See para 9 above.

29.     That state of affairs appears to have altered in the months before Mr Wilson left the Army.  In May 1980, after Mr Wilson made a formal application for discharge, his commanding officer noted a change in his efficiency and deterioration in attitude to Army life over the previous six months[10].  It was in that period that Mr Wilson expressed concern about his mother and sister and representations were made on his behalf by his mother, his general practitioner and member of Parliament[11].  Mr Wilson’s evidence was that the problems identified in relation to his mother and sister were genuine and that his concern for them was also genuine.  While Mr Wilson may have had reservations about continuing in Army life because of the events on Guadalcanal, I do not accept that these family matters had no role to play in Mr Wilson’s requests to leave the Army or in his psychological state at the time.  However, in applying s 30 of the Act, it is not the underlying cause of Mr Wilson’s diagnosed post traumatic stress disorder which is directly relevant.  Rather, it is the impact that this condition had on his capacity to work as a labourer or truck driver.  

[10] See para 11 above.

[11] See para 10 above.

30.     While there is consensus in the psychiatric evidence that Mr Wilson suffered the symptoms of post traumatic stress disorder in 1980, there is also evidence that the condition affected him more severely over time.  That was the opinion of Dr Gray.  As noted above[12], Dr Tucker considered that post traumatic stress disorder is not a condition which may have a delayed onset.  However, his opinion was that the symptoms may become more severe and persistent and he described Mr Wilson’s symptoms in that way over the years to the 1990s when treatment commenced.  That is consistent with Mr Wilson’s work history.  Dr Tucker was of the view that Mr Wilson had a record of many short term jobs in post-service years and that this demonstrated the presence of post traumatic stress disorder from 1980 onwards.  I do not accept the premise on which Dr Tucker based that opinion.  From the time he left the Army, Mr Wilson found work as a labourer for 12 months and left this job to move to Queensland to be near his family.  He again worked as a labourer for about 12 months.  After a short period of unemployment, he worked as a chainman for four years to 1987.  He then worked as a labourer for about two years but resigned to take up a similar job with the Redlands Shire Council because it was closer to where he lived.  He worked there until 1997.  I am satisfied that Mr Wilson’s work history is not one of many short term jobs.  It reflects a clear capacity to undertake employment as a labourer not only in 1980 but for many years afterwards.  

[12]  See para 22 above.

31.     On leaving the Army in 1980, Mr Wilson had a civilian licence to drive a truck.  He surrendered this after conviction for a traffic offence in 1983 and did not work as a driver until he was working for the Redlands Shire Council.  In order to take this up, he had to renew his licence in about 1993 and was able to meet the relevant testing requirements to achieve this.  He then worked as a driver of a road maintenance truck with two fellow crew members until his post traumatic stress disorder deteriorated in 1997.  In 1996, Dr Freed reported Mr Wilson as stating that he had been coping somewhat better since he took up the truck driving.  I accept the evidence that Mr Wilson’s post traumatic stress disorder worsened in its presentation of symptoms and that, by 1997, he no longer had capacity to work as a truck driver.  However, before then, Mr Wilson had a demonstrated capacity, not only to work as a truck driver, but to undergo the required testing to retain his licence more that 10 years after his Army discharge.  I am satisfied that his capacity to do so at the time of his discharge from the Army was diminished only to a small degree.  That was the opinion of both Dr Gray and Dr Slack.  

32.     I have noted Mr Fittler’s contention that Dr Tucker was better placed than Dr Gray or Dr Slack to give an opinion on Mr Wilson’s work capacity because of his contact with Mr Wilson.  While Dr Tucker’s opinion of Mr Wilson’s post traumatic stress disorder is valuable, I have not accepted the description he gave to Mr Wilson’s post service employment history on which he based his opinion.  I also reject Dr Tucker’s opinion that there is no element of speculation involved in making an assessment of a person’s work capacity in particular fields some 20 years earlier.  I am satisfied that, because of the many variable factors involved, there is inevitably some speculation in such a process. 

33.     On the basis of the evidence of Dr Gray and Dr Slack, I am satisfied that, at the time of his discharge from the Army, Mr Wilson’s impairment from post traumatic stress disorder diminished his capacity to undertake civil employment as labourer or truck driver to a small degree and that this was less than 30%. 

CONCLUSION

34.     I am satisfied that, under s 30(1) of the Act, the appropriate classification of Mr Wilson at the time of his discharge from the Army was Class C. 

DECISION

35.     The decision under review is affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member

Signed:...........................[Sgd]...................................................
  Kate Slack, Research Associate

Date/s of Hearing  5 May 2010
Date of Decision  13 May 2010
For the Applicant  Mr Bob Fittler, advocate
Solicitor for the Respondent     Mr Andrew Dillon