Greer and Defence Force Retirement Death Benefit Authority [2003] AATA 6 (7 January 2003)

Last Updated: 1 August 2005

DECISION AND REASONS FOR DECISION [2003] AATA 6

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/779

GENERAL ADMINISTRATIVEDIVISION )

Re JOHN WINSTON GREER

Applicant

And DEFENCE FORCE RETIREMENT DEATH BENEFIT AUTHORITY

Respondent

DECISION

Tribunal Senior Member KL Beddoe Dr KP Kennedy OBE, Member Dr EK Christie, Member

Date 7 January 2003

Place Brisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor affirms the primary decision of 17 July 1975.

..............................................

(Sgd)

KL Beddoe

Senior Member

CATCHWORDS

DEFENCE FORCES – retirement and death benefits – entitlement – whether applicant suffering from a retirement impairment

Defence Force Retirement and Death Benefits Act 1973s 30

REASONS FOR DECISION

7 January 2003 Senior Member KL Beddoe Dr KP Kennedy OBE, Member Dr EK Christie, Member

1. The matter before the Tribunal relates to the decision of the respondent dated 17 July 1975, confirmed upon reconsideration on 13 July 2001 under section 30 of the Defence Force Retirement and Death Benefits Act 1973 ("the Act") that the applicant's percentage of incapacity in relation to civil employment is 40% and accordingly the applicant be classified Class B on and from 25 January 1975.

2. On 13 July 2001, the respondent resolved:

(a) under section 30 of the Act, to determine that the relevant kinds of civil employment which a person with the applicant's vocational, trade and professional skills, qualifications and experience might reasonably undertake(disregarding) all impairments were Storeperson, Sales Representative, Mechanic's Assistant and Radio Operator;

(b) that Personality Disorder withReactive Depression, Lumbar Back Pain and Haemochromatosis constituted the Applicant's retirement impairment; and

(c) to affirm the authorised person's decision that the applicant be classified 40% Class B with effect from 25 January 1975.

Relevant Legislation

3.  Section 30 of the Act reads as follows:

"30.Where a member of the scheme, not being a member of the scheme to whom section 36 applies, 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

Sixty per centum or more A

Thirty per centum or more but less than sixty per centum B

Less than thirty per centum C"

4. Section 30 was amended by Act No 15 of 1979 effective from 19 March 1979 when it received the Royal Assent.While the Authority took the view that the application should be reconsidered taking into account the amending Act, we are not satisfied that was the correct approach.The matter was not properly debated before us but we have proceeded on the basis that we should apply the law as it was at the time of the primary decision, that is, at 17 July 1975.Our reason for this conclusion is that section 10(1) of the amending Act provides that the amending Act shall apply to a person such as the applicant on or after the date of effect as if he had been classified under section 30 of theAct, as amended by the amending Act.We are unable to conclude that section 30, as amended, is to apply to a reconsideration of the primary decision in this case.

5. Notwithstanding that, we are satisfied that we are required to consider what were the applicant's physical and mental incapacities which caused him to be retired from the Air Force in January 1975.

6. It is relevant to note at this stage that the Authority has resiled from its decision on reconsideration, insofar as Haemochromatosis was accepted as a retirement impairment, in the proceedings in this Tribunal thereby putting the issue back in dispute.

Evidence of Applicant

7. In his written statement the applicant confirmed that he was born on 7 November 1946 and joined the RAAF on 10 December 1963.On 25 January 1975 the applicant was retired from the Defence Force on the ground of invalidity or physical or mental incapacity to perform his duties. On 17 July 1975, a delegate of the respondent classified the applicant as 40% Class B under s 30 of the Act for the purposes of his entitlement to invalidity benefits under the Act.

8. There were a number of subsequent reviews at the request of the applicantbut at no stage was the applicant successful in obtainingan upgrade from Class B.

9. In his statement of 6 June 2002, the applicant quoted an earlier Tribunal observation that there was no dispute between him and the respondent regarding impairments of personality disorder with reactive depression or lumbar back pain. The applicant however contended that he had symptoms of another major illness at the time of his retirement from the Defence Force viz Haemochromatosis. Further he claimed that the Pre-Board and Medical Board had been poorly prepared and would have had insufficient information to make an educated evaluation of his disability with regard to his mental capacity at the time of his retirement.

10. The applicant stated that he had had chronic fatigue or similar problems since 1972. When it was brought to his attention by the Tribunal that among his many visits for medical treatment, fatigue or similar complaint had been mentioned only three times up until 1974, the applicant agreed that the observation was correct. Further it was pointed out to him that on each occasion there was an adequate reason for the symptom at the time. On one occasion in 1972 he had presented with recurrent tonsillitis which had been so troublesome that Tonsillectomy was eventually required. On another occasion when the actual report was "no energy" he was observed to be depressed and reported that he had not slept for two nights. The third reference was in March 1974 when he gave a history of recurrent colds for two months and "lack of energy". There were no reports in the medical records up until the date of his retirement to indicate any continuing fatigue or similar symptom.

11. In cross examination, the applicant claimed that his main symptoms at the time of discharge were lethargy and impotence. He believed that if a blood test had been done, Haemochromatosis would have been diagnosed. He agreed with Mr Dube that in 1973 there had been significant personal issues in his life. In April 1973, his wife fell pregnant and he did not want another child. That created tension. In 1973 he became involved with another woman with more conflict.His wife and child were sent to Queensland.In April 1974 he was admitted to hospital following a suicide attempt. He was discharged from hospital in June but readmitted in July and again in October 1974 because of psychiatric symptoms. The Medical Board review which resulted in his retirement was held on 31 October 1974.

12. The applicant had been under the constant care ofa specialist psychiatrist during the twelve months prior to Medical Board review. He agreed that 1974 had been a stressful period for him.He was drinking alcohol but he denied that he was drinking excessively at the time.

Medical Evidence

13. Apart from the service medical notes, one of thefirstoutside medical reports was provided by Dr Ingpen, a specialist in Physical Medicine. Dr Ingpen had seen the applicant in relation to intermittent back pain.In the medical report of 29 October 1974, Dr G T Killer had reported the pain to be a minor condition. In a subsequent report from his general practitioner at the Manly Clinic there was no report of back pain between May 1976 and September 1977.In September 1977 the applicant had been referred to an orthopaedic surgeon, Dr Blue, who had found no orthopaedic cause for the back pain and had recommended referral to a Psychiatrist.The subsequent notes from the Manly practice recorded that by 24 October he was free of backache after commencing Tofranil (a tranquilliser) and was then "the best that he had felt for years".

14. The first report of a psychiatric review subsequent to his discharge from theDefence Service was a November 1977 report from a specialist Psychiatrist, Dr BenKleinberg. Dr Kleinberg reported that the applicant had at that time been depressed for about five weeks. He stated that he felt more depressed if there were problems at home and that when he was depressed his back problem was worse. Overall Dr Kleinberg felt that the applicant had made a good adjustment to the problems in his personality and he rated his disability in relation to civil employment at 15%.

15. In June 1980 he told another specialist Psychiatrist Dr G B Murphy that an accumulation of personal and domestic factors had contributed to the development of a depressive state needing hospitalisation.He was not then on medication.Dr Murphy rated his disability in relation to civil employment at 40%.No symptom of fatigue was recorded.He said that he felt relaxed doing heavy work.He also said that he felt to be improving but felt uncertain whether the improvement would be sufficiently consistent to enable him to continue work.

16. In 1991, a report was prepared by Dr John Slaughter, also a specialist Psychiatrist. Dr Slaughter commented thatthe applicant was then receiving intensive psychiatric treatment while under the care of Dr Beacham. Dr Slaughter considered that he suffered from a disorder of personality with frequent lapses into a depressed mood. His work history in recent years had been marked by breakdown in relations with employers with angry outbursts ending in dismissal or walking out. Dr Slaughter had assessed his disability at more than 30% but less than 60%.

17. The applicant had also been under the care of Dr Alston Unwin, a specialist Psychiatristfor a period of approximately ten years. Dr Unwin, in a report prepared in March 2000, said that he had first seen Mr Greer in 1979. He had assessed him as suffering from a major depressive disorder. He said that when he saw him he was suffering from lowered mood, lethargy, anergia, suicidal thoughts and intents. Dr Unwin stated that after medication and psychotherapy he would have assessed the applicant as 60% disabled.Dr Unwin no longer held his original notes and his evidence was based largely on his memory of events.

18. In his oral evidence Dr Unwin indicated that he felt that the persistence of the lethargy and impotence in spite of improvement in the other symptoms could have been due to the fact that the applicant had Haemochromatosis.Dr Unwin said that the applicant had been treated at various times with Serepax, Mogadon, Diazepam and Parnate. He agreed that apart from Depression as a cause, these drugs could also cause lethargy and impotence.

19. In 1996 the applicant saw his general practitioner, Dr Saleh, complaining of chronic fatigue. Dr Saleh referred the applicant to Dr Charles Steadman, a specialistGastroenterologist. Two years previously diabetes mellitis had been diagnosed. Dr Steadman was asked in correspondence whether the Haemochromatosis would have caused any incapacity for civilian employment at the time of discharge from the RAAF in 1975. Dr Steadman said that the question was impossible to answer.

20. In 1999 the applicant had been referred for an opinion to another Gastroenterologist, Dr Kevin Hourigan. The applicant told Dr Hourigan that there had been the onset of impotence in 1970 (age 24), chronic fatigue syndrome since 1972, personality disorder diagnosed 1975, Haemochromatosis in 1996, coronary artery bypass surgery in 1997, and polycythaemia in 1998.Dr Hourigan opined that it was no more than remotely possible that the Haemochromatosis was already manifesting with symptoms in 1974.

21. In his oral evidence Dr Hourigan said that impotence is not seen as an early symptom in Haemochromatosis. He said that the onset of impotence at the age of 24 years would not be due to Haemochromatosis.He said that he strongly disagreed with the views expressed in the report of Professor Powell.In cross examination, he agreed that he could not say that fatigue had not been present nor could he say that fatigue was not due to Haemochromatosis.Finally in his written report Dr Hourigan stated that Haemochromatosis would not have contributed to incapacity at the time of the applicant's discharge from the RAAF.

22. The T Documents also contained a report prepared by a Consultant Physician, Dr Peter Stephenson of Brisbane. Dr Stephenson recorded that Mr Greer told him that the fatigue had begun back in 1968, but that he had not reported it to a doctor until about 1972. He said that he kept losing jobs because of fatigue. Dr Stephenson said that the essence of the argument that the applicant had proposed to him, as he understood it, was that the psychiatric and general condition had been profoundly influenced by the underlying Haemochromatosis and that Haemochromatosis had been a cause of at least intermittent incapacitating fatigue going back to the 1970s. Dr Stephenson said that he would not agree with that argument.

23. Dr Stephenson stated that there is no evidence that the early stages of iron deposition in the liver are associated with incapacitating fatigue. In relation to the degree of impairment for work in the categories listed, Dr Stephenson did not rate the degree of disability beyond 30%.

24. In a written statement dated 28 February 2000, Professor Lawrie Powell said that with the benefit of hindsight, that it was almost certain that Mr Greer was in the early symptomatic stage ofHaemochromatosis in 1975. He said that Haemochromatosis was unlikely to have been the direct cause of the applicant's incapacity to perform his duties. He felt, however, that frustration at the lack of obvious cause for his symptoms could have aggravated his depression.

25. Professor Powell opined that Haemochromatosis could have diminished the applicant's capacity to undertake the listed occupations as follows:

Storeperson and Sales Representative Of order of 10% 

Trades Assistant and Radio Operator 30%

26. Professor Powell said that Haemochromatosis would have been unlikely to have caused or contributed to his back pain.

27. During cross examination and in reply to questions from the Tribunal, Professor Powell was less positive in his opinion. He agreed with Mr Dube that he had based his assessment on what the applicant had told him.Professor Powell had believed that fatigue had been a prominent feature since 1975. He agreed also that lethargy is a non-specific symptom and could have been the result of psychiatric problems or a number of things.

28. Although Professor Powell had quotedthe impairment of capacity to undertake work as a trades assistant at 30% he later admitted that that was a rather generous assessment and that in fact it was impossible to be precise with respect to the extent which any symptoms due to early disease would have diminished the applicant's capacity to undertake employment.

29. In response to questions from the Tribunal, Professor Powell said that it was impossible to be precise as to what proportion of Haemochromatosispatients in their 20s or 30s have symptoms.He said that it would be very rare for someone in their 20s or 30s to be so affected by the disease that he could not continue in his employment.

30. Professor Powell, in further response to the Tribunal, said it was less likely that fatigue would have been a symptom at the age of 22 years (as the applicant had reported to Dr Stephenson). When it was brought to the attention of Professor Powell that in the extensive medical notes during service, fatigue or similar symptom had been mentioned only three times up until his discharge from the service and only a few times up until 1991, and that on each occasion there was an identifiable cause, Professor Powell replied that at no stage did he say that the lethargy was definitely due to Haemochromatosis. Also he indicated that Depression is not a feature of Haemochromatosis.

31. When it was put to Professor Powell that having regard to the psychiatric history was it not more likely that psychiatric illness would have been a more likely cause for the fatigue, Professor Powell replied that that was distinctly possible. He agreed that Depression could cause lethargy.

32. The final medical witness was Dr Graham Killer.Dr Killer was President of the Medical Board that formed the basis of the decision to retire Mr Greer from the RAAF on the grounds of invalidity, or physical or mental incapacity to perform his duties.Dr Killer confirmed the information previously set out in his reply to a series of questions.

33. In that communication of January 2002, Dr Killer stated that the invalidity or physical or mental incapacity which in the opinion of the Medical Board prevented Mr Greer from performing his duties in the RAAF, was Personality Disorder with Reactive Depression and lumbar back pain. The applicant's labile mental state and behaviour resulted in the need for the provision of extensive inpatient and outpatient psychiatric treatment and support. He had frequent absences from work and his general behaviour resulted in him being regarded as an administrative nuisance.

34. In relation to possible symptoms of Haemochromatosis, Dr Killer stated that at the time of the Medical Board in October 1974, despite a number of formal medical assessments, there was no demonstrable clinical evidence to suggest that Haemochromatosis was present, nor that Haemochromatosis contributed in any way to Mr Greer's invalidity or physical or mental incapacity. Any suggestion of lack of libido at that time was almost certainly related to the depressive mental state.

35. In the course of his oral evidence, Dr Killer outlined the procedures adopted by the Medical Board and the requirements that have to be met before determining that a member of the Defence Force is no longer fit to continue in the Service. He said that in the case of Mr Greer, his mental state was the issue considered and he indicated that the Board had all the required information available to make the correct decision.

Review of Evidence

36. The applicant had claimed that the Pre-Board and the Medical Board had been poorly prepared and would have had insufficient information to make an educated evaluation of his disability with regard to his mental capacity at the time of his retirement. Having noted the extent of the information available to the Medical Board at the time and having heard the oral evidence of the then President of the Medical Board (Dr Killer) of the procedures followed by the Board, the Tribunal finds this claim of the applicant to be without substance.

37. In regard to the claim of the applicant that he already had the symptoms of Haemochromatosis at the time of his discharge, we note that his basis for this claim was that he had been conscious of fatigue, loss of energy and/or lethargy for two to four years prior to the Medical Board. The facts are that such symptoms had been recorded in his service documents on three isolated occasions prior to 1974 and on each occasion the acute medical condition operative at the time had in itself provided an adequate basis for such a symptom. The complaint of chronic fatigue only became a prominent feature after the Haemochromatosis had been diagnosed in 1996, some twenty years later.

38. The Tribunal has however noted that Dr Unwin, in his report of 19 March 2002, did state that, with treatment, many aspects of the applicant's depression remitted except for the profound lethargy and sexual impotence. In the course of his oral evidence, Dr Unwin agreed that lethargy and fatigue could occur as the result of depression and also that the medication prescribed could have similar effects. Dr Unwin did not say that all other symptoms of Depression had remitted with treatment either. In any case Dr Unwin first saw the applicant five years after his discharge and was in no position to comment on the situation in 1974. Even in relation to 1979, Dr Unwin no longer had his notesavailable. The Tribunal finds the contemporaneous notes in the service documents to provide the more reliable information as far as 1974 symptoms were concerned.

39. Dr Unwin had also referred to the persistence of the impotence. Certainly that symptom had appeared in the service documents but it was considered to be due to his mental state. Dr Hourigan had reported thatimpotence is a late symptom in Haemochromatosis and in his oral evidence, Dr Hourigan said that impotence at the age of 24 years would not be due to Haemochromatosis.

40. On the evidence available, the Tribunal does not accept that the applicant was experiencing chronic fatigue prior to 1974. The Tribunal also notes that Dr Stephenson had stated that it was highly unlikely that Mr Greer's Haemochromatosis had imposed any symptomatic burden of fatigue on him at all.Dr Hourigan said that it was no more than remotely possible that Haemochromatosis was already manifesting symptoms in 1974.

41. The applicant relied heavily on the opinion of Professor Powell in support of his argument that symptoms of Haemochromatosis, in particular fatigue, would have been present in 1974. Certainly in his written report, Professor Powell said that with the benefit of hindsight Mr Greer would have been in the early symptomatic stage of Haemochromatosis in 1975.

42. During cross examination and in reply to questions from the Tribunal Professor Powell was however less positive with his opinion. He had based his opinion on what the applicant had told him and he clearly believed that fatigue had been a chronic symptom going back to 1974 or earlier. Professor Powell agreed that such symptoms as fatigue and lethargy are non specific symptoms which could well be explained in this case by Depression. Professor Powell also emphasised that at no stage had he said that lethargy had been definitely due to Haemochromatosis. The Tribunal therefore finds that the overall evidence of Professor Powell has not negated the views of the other physicians who had opined that fatigue was most unlikely to have been a feature of Haemochromatosis in the case of the applicant in 1974.

43. With regard to the claim that the degree of disability had been greater than 40% in 1974, on the basis of the overall medical evidence, the Tribunal finds no reason to vary the primary decision. There has been no argument advanced that therelevant kinds of civil employment listed in the decision of the respondentare not appropriate. The only medical report to assess the degree of incapacity at 60% was that of Dr Unwin made on the basis of his review back in about 1989. As far as the applicant's psychiatric state is concerned he was assessed in 1991 by Dr Slaughter and the degree of incapacity at that time was assessed at more than 30% but less than 60%. All other medical reports have made an assessment between 15% and 40%.

44. The Tribunal for the reasons given, finds that Haemochromatosis was not a retirement impairment.The Tribunal therefore sets aside the decision under review and affirms the primary decision of 17 July 1975.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe, Dr KP Kennedy OBE, Member and Dr EK Christie, Member

Signed: Sarah Oliver

Associate

Dates of Hearing 25 and 26 July 2002

Date of Decision 7 January 2003

The Applicant Appeared In Person

Solicitor for the Respondent Mr Dube, Australian Government Solicitor