Briggs and Defence Force Retirement and Death Benefits Authority
[2007] AATA 1310
•9 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1310
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200400303
GENERAL ADMINISTRATIVE DIVISION ) Re DEBRA BRIGGS Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Ms L R Tovey, Member
Dr D Weerasooriya, Member
Date 9 May 2007
PlacePerth
Decision The Tribunal:
1. sets aside the decision under review; and
2. substitutes a decision that:
(a) the decision to reclassify the Applicant from "60% Class A" to "10% Class C" with effect from 17 October 2003 be set aside; and
(b) the Applicant's classification of "60% or more Class A" remain unchanged.
.....…(Sgd. Dr D Weerasooriya)................
Member
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – Invalidity Benefits – Classification for Benefit – Reclassification from Class A to Class C – Identification of Prescribed Physical or Mental Impairment – Identification of Extent to which the Applicant's Capacity to Undertake Civil Employment has been Diminished.
LEGISLATION
Defence Force Retirement and Death Benefits Act 1973 (Cth), ss 26, 30, 34.
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 Thomson and Defence Force Retirement Benefits Authority (1987) 6 AAR 424.
REASONS FOR DECISION
9 May 2007 Ms LR Tovey, Member Dr D Weerasooriya, Member 1. This application for review by Mrs Debra Briggs ("the Applicant") concerns a decision of the Defence Force Retirement and Death Benefits Authority ("the Respondent") made on 30 July 2004. At that time the Respondent reconsidered a decision of the Respondent's delegate made on 10 September 2003 under s 34 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) ("the Act"). The decision of the Respondent's delegate was to reclassify the Applicant from "60% Class A" to "10% Class C" for the purposes of the Applicant's entitlement to invalidity benefits under the Act.
2. On 30 July 2004 the decision of the Respondent's delegate was reconsidered by the Respondent, pursuant to s 99(4) of the Act. The decision of the Respondent's delegate was varied by changing the percentage of the Applicant's incapacity to "20% Class C". The Applicant now seeks a review of the Respondent's decision by this Tribunal.
BACKGROUND
3. It is common ground that the Applicant, who was born in May 1960, joined the Royal Australian Air Force on 13 August 1979. Prior to enlisting in the RAAF, the Applicant had completed year 11 of her education in South Australia in December 1977 and then worked as a seasonal fruit picker and packer.
4. The Applicant was married in December 1980, but separated from her then husband in 1983. As a result of that separation, the Applicant was required to move out of the married quarters at RAAF Pearce by 29 August 1983.
5. It is also common ground that the Applicant was involved in a motor vehicle accident at about 4pm on Sunday 28 August 1983. At this time she was the sole occupant of a vehicle travelling northbound along Great Northern Highway towards Gingin. She was towing a trailer of rubbish from her married quarters to the Bullsbrook rubbish tip, in preparation for her required move. As she was turning right onto a service road to the tip, her vehicle was struck from behind by a fuel tanker weighing some 2 tonnes, which was travelling along Great Northern Highway in the same direction as the Applicant. The tanker T-boned the Applicant's vehicle and pushed it a considerable distance before the Applicant's vehicle was pushed onto the left-hand side of the road and towards a tree. The driver's seat of the Applicant's vehicle was broken off its hinges and pushed sideways towards the passenger seat.
6. At first the Applicant did not believe that she was seriously injured, but says that the service police who attended the accident scene took her to the medical section of RAAF Pearce where she was seen by the senior medical nurse on call. The following day she was seen by a base doctor, who sent her home for a few days.
7. Following the motor vehicle accident the Applicant experienced symptoms which included frontal headache and neck soreness. An incident occurred on 31 August 1983 where the Applicant fainted in the Airmens' Mess. The Applicant received medical attention between 1983 and 1985 from a variety of sources.
8. The Applicant was seen by Dr S S Gubbay, a neurologist, who reported on 15 December 1983 that the Applicant had some tenderness of the cervical spine and some painful restriction of neck movements in all directions. However, he reported that a neurological physical examination was entirely normal and understood that the x-rays of the Applicant's cervical spine did not show any abnormality. Dr Gubbay reported that the Applicant was probably suffering from the effects of soft tissue injury to her cervical spine occasioned by the motor vehicle accident. He thought that the soft tissue injury had probably triggered the Applicant's neck pain and recurrent headaches. Although not a psychiatrist or psychologist, Dr Gubbay expressed the view that the Applicant had a severe personality disorder. He said that the Applicant's headaches were probably related to the motor vehicle accident and soft tissue neck injury, but were certainly aggravated by muscle tension due to nervous tension factors.
9. A report by a psychiatrist, Dr R G Harding, on 7 February 1984 described the history he had taken from the Applicant, and expressed the conclusion that the Applicant was "a very shy girl, unpositive, unconfident, sexually uninformed and does, as enumerated above, have quite severe problems with her personality structure". Despite this statement, his report did not enumerate severe problems with the Applicant's personality structure. He subsequently, on 29 March 2004, described the Applicant as "sadly lacking in ego strength". Subsequent reports of Dr Harding to 8 November 1984 were before the Tribunal, but do not contain any more detailed description of any diagnosis of psychological impairment.
10. In June and November 1985 the Applicant was seen by Dr P M Finch, a pain management specialist. Dr Finch indicated that the Applicant reported cervical stiffness, headaches and cervical pain especially on the right and also on rotation of the cervical spine to the left. The Applicant complained of inability to pick up heavy objects. Her reported symptoms also included occasional dizziness and an inability to rotate her neck to the right. On examination of the Applicant on 5 November 1985 Dr Finch noted that there was a limited range of cervical movements, especially lateral flexion to the right. There was tenderness over the higher right cervical facet joints, possibly over the right C2/3 facet. Neurologically, Dr Finch could not fault the Applicant. The diagnosis was of soft tissue and adjacent facet injury in the high right cervical spine.
11. A report on an employment standard review of 14 November 1985 referred to the Applicant's chronic neck pain which had, over the previous six months, prevented her from performing the majority of her duties. The review also indicated that the Applicant suffered from a moderate to severe personality disorder in that she had "an extremely shy, withdrawn personality with a tendency to become dependent on others." The review concluded that the Applicant was unfit for the duties of her mustering (which at all times in the Air Force involved work as a kitchen hand) and required restrictions from parades and heavy lifting.
12. In her evidence before us, the Applicant indicated that from 1985 to 1986 she was "passing out from massive neck and head pains". This description appears generally consistent with the contemporary medical records of that time.
13. The Applicant was discharged from the Air Force on 30 April 1986 as medically unfit for service with the rank of leading aircraftwoman. The information provided by the RAAF to the Respondent at that time indicated that the Applicant had worked as a cook’s assistant and that her duties involved assisting with the preparation of meals, general cleaning and the maintenance of hygiene in the mess. That information described the conditions that constituted the physical or mental impairment that was the cause of the invalidity or physical or mental incapacity by reason of which the Applicant was retired as "chronic cervical strain" and "personality disorder". It also identified the kinds of civil employment in which a person with the Applicant's skills, qualifications and experience (disregarding all physical or mental impairments) might reasonably undertake as "fruit picker/packer" and "kitchen hand". It expressed the opinion that the degree to which the identified physical or mental impairment diminished the capacity of the Applicant to undertake those kinds of civil employment as "moderate 30%".
14. A delegate of the Respondent initially classified the Applicant as "moderate, 30% class B" in October 1986. That classification was retained on a review by the Respondent's delegate on 7 February 1995. In those determinations the prescribed impairment was described as "chronic cervical strain and personality disorder" and the employment which the Applicant might reasonably undertake as "Clerk, Kitchenhand, Fruit Picker/Packer". The Applicant sought a reconsideration of the latter decision in March 1995.
15. On 1 September 1995 the Respondent decided to vary the delegate's decision that the Applicant remain classified "30% class B" with effect from 7 February 1995, by determining that she be classified as "60% Class A" on and from that date. In making that determination, the Respondent had regard to the following medical reports:
(a)A report from Professor Burvill, a psychiatrist, dated 2 February 1995, who expressed the opinion that the Applicant's inability to work on account of any psychiatric problems, including personality disorder, to be small.
(b)A report of Dr Tan, the Applicant's treating general practitioner, dated 18 May 1995 who regarded the Applicant as totally unfit for any work as a result of her symptoms and physical findings on 10 November 1994. Dr Tan thought that, after another period of rehabilitation, it was worth trying to get the Applicant into a clerical job, but did not think that she should be a kitchen hand or a fruit picker/packer.
(c)A report of Professor Mastaglia, a consultant neurologist, dated 22 December 1994 which expressed the view that the Applicant was still generally incapacitated by her neck symptoms and headaches which would collectively interfere with her general mobility and ability to perform the specified forms of employment (namely clerk, kitchen hand, fruit picker/packer), for which she had a moderate level of disability.
(d)Reports of Dr HB Hamzah, a consultant in anesthesia and pain management, dated 29 May 1995 and 13 June 1995, which referred to right sided neck pain, headaches, spasms of right neck musculature, with associated weakness and paraesthesia of the right arm with occasional pain radiating to the low back in the mid-line. Dr Hamzah identified the Applicant's restrictions in employment as a clerk, fruit picker/packer or kitchen hand as "not to make any repetitive movements of her right arm and hand, bend over or carry weights of more than 2-3 kilograms at a time".
(e)A report of Dr Finch dated 23 June 1995, which indicated that the Applicant had suffered injury to her cervical spine in her motor vehicle accident, most probably to the C2/3 segmental structures including the facet joint and also to about the C5/6 segmental structure causing some irritation to the nerve roots. Dr Finch considered the Applicant's work capacity to be limited and was of the opinion that she was not capable of working in areas for which she was fitted by training and experience.
(f)A report of Dr EG Stewart-Wynne dated 27 July 1995, in which the view was expressed that the restrictions arising from the Applicant's chronic neck strain were an inability to lift items of any weight, to sit for any length of time, to perform repetitive movements such as on a keyboard and to concentrate for periods of time. Dr Stewart-Wynne's opinion was that this impairment totally diminished the Applicant's capacity to work as a fruit picker/packer, clerk or kitchen hand.
16. The Applicant remained classified "Class A" when she was reviewed by Dr PD Stevenson, a consultant physician, on 10 June 2003 and Dr L Ding, a consultant psychiatrist, on 14 August 2003. In a report dated 18 June 2003 Dr Stevenson regarded the Applicant's presentation as inconsistent and clearly functional. He did not regard the Applicant as having any true incapacity, and concluded that the Applicant's chronic cervical strain had long since resolved and any incapacity resulting therefrom was minimal. In a report dated 26 August 2003 Dr Ding gave a diagnosis of "anxiety disorder, not otherwise specified", which on its own had only a small effect on the Applicant's capacity to undertake work as a clerk, fruit picker/packer or kitchenhand.
17. On 10 September 2003, acting in reliance on the reports of Dr Stevenson and Dr Ding, a delegate of the Respondent determined to vary the Applicant's classification from Class A to Class C with effect from 17 October 2003. On 30 July 2004 the Respondent reconsidered and varied this decision of its delegate. The decision reclassifying the Applicant from "60% Class A" to "10% Class C" with effect from 17 October 2003 was varied, but only by changing the percentage incapacity to "20% Class C".
18. The Applicant, who contends that her classification should not have been adjusted from "60% Class A" at all, now seeks a review of the Respondent's decision of 30 July 2004 by this Tribunal. We note that the classification of "60% Class A" should, in the terms of the Act noted below, be described as "60% or more Class A", but nothing turns on this description.
LEGISLATION
19. Part V of the Act deals with the payment of invalidity benefits. Section 26 of the Act provides that, subject to exceptions which are not presently material:
"… where a contributing member is retired on the ground of invalidity or of physical or mental incapacity to perform his duties, he is entitled, on his retirement, to invalidity benefit in accordance with this Part."
20. It is not in dispute that the Applicant is a contributing member who was retired on the ground of invalidity or of physical or mental incapacity to perform her duties.
21. Where a member becomes entitled to invalidity benefit, s. 30(1) of the Act requires the Respondent to determine the member's percentage of incapacity in relation to civil employment. The Respondent is to classify the member 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
22. Section 30(2) of the Act provides for the criteria to be applied in making this assessment in the following terms:
"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."
23. Subsequent provisions then deal with the different rates of invalidity benefit applicable to persons so classified, with the higher rate being payable to those classified "Class A". The position was helpfully summarised in the Respondent's submissions in the following terms:
"Section 31 provides that a member of the scheme who is classified Class A is entitled to invalidity pay at the rate of 76.5% of the person's annual rate of pay immediately before retirement and 38.25% at Class B level. Pensions payable under the Act are increased annually in line with movement in the consumer price index. Members initially classified as Class A or Class B are recipient members for the purposes of s. 34 of the Act. Section 32 provides that a member who is classified Class C on discharge is entitled to a refund of contributions and a lump sum equal to one-half the amount of the refund."
24. Section 34 of the Act then provides for the reassessment of that classification relevantly in the following terms:
"(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:
(aa)what is 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 or had 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 or a deceased member who was immediately before his or her death a recipient member, means:
(a)a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member 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 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…”
25. There are no matters prescribed for the purposes of ss 30(2)(d) or 34(1A)(d) of the Act.
ISSUES
26. Against the above legislative and factual background, the issues for our determination are as follows:
(a)What are the vocational, trade and professional skills, qualifications and experience of the Applicant?
(b)What kinds of civil employment might a person with the Applicant's skills, qualifications and experience reasonably undertake?
(c)What is the Applicant's "prescribed physical or mental impairment"?
(d)To what extent did the Applicant's prescribed physical or mental impairment diminish the capacity of the Applicant to undertake the kinds of civil employment referred to in paragraph (b) as at 17 October 2003?
(e)Having regard to the above matters, and only those matters, are we satisfied that the Applicant's percentage of incapacity in relation to civil employment is such that her classification should be altered with effect from 17 October 2003?
27. In framing the issues in that way, we accept the submission of the Respondent that the Tribunal must determine the degree of incapacity which the Applicant suffered on or around 17 October 2003, rather than the current degree of the Applicant's incapacity for civil employment. However, it remains the case that we are obliged to look at the capacity of the Applicant and reach a conclusion as to the degree to which the original physical or mental impairment which caused her incapacity had, at 17 October 2003, diminished her capacity for civil employment: Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 at 142, citing with approval Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 160. It also appears from the decision in Freeman that the matters specified in s 34(1A)(a) and (b) are to be considered as at 17 October 2003.
CONSIDERATION OF THE ISSUES
Skills, Qualifications and Experience of the Applicant
28. There was no dispute between the parties as to this question. The vocational, trade and professional skills, qualifications and experience of the Applicant are usefully summarised in the Statement of Facts and Contentions of the Respondent in the following terms:
"11The Applicant left school at 16. Prior to enlisting in the RAAF at age 19, she worked as a seasonal labourer in fruit picking and packing. While employed by the RAAF, the Applicant undertook recruit training and was employed as an assistant cook. She assisted with preparing meals, general cleaning and maintenance of hygiene in the mess. The Applicant attained the rank of leading aircraftwoman and was discharged on 30 April 1986 (T22)
12Since discharge, it appears that the Applicant has not worked".
29. Other than to note that the Applicant was 17 years old when she completed her year 11 high school education in December 1977, we accept this as an accurate statement of the Applicant's vocational, trade and professional skills, qualifications and experience.
Civil Employment which a Person with the Applicant's Skills, Qualifications and Experience might Reasonably Undertake
30. The question raised by s 34(1A)(b) of the Act is an objective one which requires consideration, not of the kinds of civil employment which the Applicant has followed or would be likely to follow, but of the kinds of civil employment which a person with the skills, qualifications and experienced identified in s 34(1A)(a) might reasonably have undertaken: Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 at 141.
31. It was common ground between the Applicant and Respondent that the kinds of civil employment which a person with the Applicant's skills, qualifications and experience might reasonably undertake were as a "fruit picker/packer" and a "kitchen hand". The Respondent no longer contended that a person with the Applicant's skills, qualifications and experience might reasonably undertake clerical work.
32. We note that the kinds of employment which the parties agree a person with the skills, qualifications and experience of the Applicant might reasonably undertake are also the kinds of employment which the Applicant has in fact undertaken in the past. As the decision in House makes clear, the kind of work to which s 34(1A)(b) of the Act refers is not necessarily confined by reference to what the Applicant has done in the past. Rather, the question is what opportunities for employment would be open to a person with the skills, qualifications and experience of the Applicant. However, in light of the agreement as to this issue between the parties, and in the absence of any directed evidence to the contrary, we are content to proceed on the basis of that position, which was agreed between the parties.
33. The activities involved in these occupations were described in two extracts of the Australian Standard Classification of Occupations published by the Australian Bureau of Statistics, which were produced by the Respondent. We accept these as general descriptions of the work involved, although note that the tasks described for a "Fruit, Vegetable or Nut Farm Hand" may extend beyond those of a "fruit picker/packer" whose tasks are more likely to be associated with the harvesting, packing and loading of fruit than the planting and maintenance operations described in the tendered document. However, we do not consider the extent of any such difference to be significant for the purposes of our decision as the tasks generally involve the same level of physical activity and skill.
Prescribed Physical or Mental Impairment
Prescribed Physical Impairment
34. It is apparent that the provisions of the Act, set out above, treat as distinct concepts the "invalidity or physical or mental incapacity" by reason of which the member was discharged, on the one hand, and "physical or mental impairment" which was the cause of that invalidity or incapacity, on the other hand.
35. Much of the evidence before us seemed to be addressed to the issue of whether or not the incapacity of the Applicant was causally related to the motor vehicle accident which occurred on 28 August 1983. That focus seems to us to be largely beside the point. The entitlement of the Applicant to invalidity benefits under the Act does not depend on any causal relationship between her invalidity or incapacity and either the motor vehicle accident or the duties of her employment. Rather, the question involves the identification of the impairment, however caused, which caused the incapacity which was the reason for the Applicant's discharge.
36. In that context there appear to us to be two steps which the Tribunal should follow in identifying the prescribed physical or mental impairment. The first is to identify the invalidity or physical or mental incapacity by reason of which the Applicant was discharged. The second is to identify the physical or mental impairment which caused that invalidity or incapacity.
37. At to the first of these steps, we would respectfully adopt what was said by Deputy President Forgie in Re Greer and Defence Force Retirement and Death Benefits Authority (2001) 63 ALD 282 at 289:
"Having regard to the authorities and to the wording of s 30(2), it seems to me that there is an obligation upon the authority, and so upon this tribunal, to determine the invalidity or physical or mental incapacity because of which Mr Greer was retired. That involves the authority, and so this tribunal, in making its own inquiries on the subject. Where there is a clear statement of the incapacity or incapacities because of which a person was retired and that statement is made by the body which made the decision, that will be strong evidence of the incapacity. That, however, is not always the case and regard will then need to be had to less direct evidence. Among that evidence may be contemporaneous medical reports, minutes of supervisors and statements of the person concerned. There may also be evidence in the form of subsequent statements by the employing agency as to what were the reasons for the earlier retirement and from the body with responsibility to make the decision to retire a person. From whatever source the material is gathered, it is all directed to determining the invalidity or physical or mental incapacity because of which a person was retired. The focus is not upon the invalidity or physical or mental incapacity upon which a person could, or should, have been retired. The focus is upon those invalidities, physical or mental incapacities upon which he was retired."
38. As to the distinction between an invalidity or incapacity, on the one hand, and an impairment, on the other hand, Deputy President Forgie said at 63 ALD 290:
"Taking into account their ordinary meanings, then, there is a distinction drawn between the deterioration, injury or loss that is the impairment on the one hand and the weakness, inability or powerlessness that is the invalidity or incapacity on the other. In the context of s 30(2)(c), the deterioration, injury or loss is the cause of the weakness, inability or powerlessness. "
39. The employment standard review which, on the Respondent's submission, formed the basis of the Applicant's discharge, focuses more on the reporters' views as to the impairment rather than the invalidity or incapacity which is the product of that impairment.
40. However the employment standard review did note that the Applicant's pain "now prevents her performing the majority of her duties". It refers to the Applicant continuing "to frequent the medical section complaining of a wide variety of symptoms – from headaches, sore throats, inability to cope with work and recently cramps in both feet". It is said that the Applicant's "current condition precludes her from doing anything but the lightest duties" and notes that the Applicant "is constantly on work restrictions". In that context, we take the conclusion that the Applicant "is unfit for the duties of her mustering" to be a conclusion that the Applicant was unable to perform the duties of a cooks assistant to which she had been assigned in her posting to RAAF Pearce.
41. That view of the actual extent of the Applicant's incapacity is also consistent with the medical reports which were referred to in the employment standard review. For example, in his report of 5 November 1985 Dr Finch said:
"I gather she feels that she can not cope with her current level of activities and would favour a discharge on medical grounds. I understand that she is already working on light duties and experiencing a considerable amount of pain. If a further reduction in the level of her duties cannot be arranged, such a discharge might eventually have to occur.”
42. The employment standard review also noted that the Applicant had an extremely shy, withdrawn personality with a tendency to become dependent on others. However, it is not clear that this was an invalidity or incapacity, as opposed to a cause of her incapacity to perform her duties. The employment standard review noted that the Applicant required restrictions from parades and heavy lifting.
43. Doing as best we can from the above very general descriptions, we find that the invalidity or incapacity which was the reason for the Applicants discharge was:
(a)the inability to perform her duties as a cooks assistant, which were to assist with the preparation of meals, perform general cleaning and the maintenance of hygiene in the mess; and
(b)the inability to undertake parades and heavy lifting.
44. The state of the evidence before us does not enable us to be any more precise as to the invalidity or incapacity which was the reason for the Applicant's discharge.
45. It is then necessary to identify the physical or mental impairment which was the cause of that incapacity. In that regard, we are not limited to the diagnoses which were in fact made at or about the time of the Applicant's discharge, although we are required to have regard to them and give those diagnoses such weight as we consider appropriate.
46. In general, the impairment which caused the incapacity might be said to be the pain which the Applicant experienced in and radiating from her neck, and the headaches, nausea and dizziness which were observed in the Applicant at that time, and the Applicant's inability to cope with that level of pain in an ordinary manner by reason of her psychological makeup. However, we consider it appropriate, to the extent that the evidence permits, to be more precise in identifying the mental disorder or physical injury or disease which caused the Applicant's incapacity.
47. In his report of 5 November 1985 Dr Finch expressed the view that the Applicant suffered a "soft tissue and adjacent facet injury in the high right cervical spine". By 23 June 1995 Dr Finch had refined the description of the Applicant's condition as an injury to the Applicant's cervical spine sustained in her motor vehicle accident, most probably to the C2/3 segmental structures including the facet joint and also to about the C5/6 segmental structure causing some irritation to the nerve roots.
48. In his report of 2 February 2004 Dr Finch said:
"I have concluded that Mrs Briggs' current pain is probably originating in a number of cervical facet joints, especially at the upper segments, with, in addition, some symptoms relating to the shallow paracentral disc protrusion at C5/6."
49. In his most recent report of 13 October 2005, Dr Finch expressed the view that the Applicant had "cervical pain originating in a number of cervical facet joints and possibly a degree of radicular pain involving the right C6 nerve root". Over the extensive period during which he has seen the Applicant, Dr Finch has maintained this view of the Applicant's impairment. While some of those views have been expressed at times after the accident, they all identify an impairment which would have existed at the time of the discharge and been a cause of the Applicant's pain, and which in turn caused her incapacity, at that time.
50. Dr Gubbay's report of 15 December 1983 refers only to a soft tissue injury to the Applicant's cervical spine occasioned by the motor vehicle accident. However this view was expressed at an early stage, and his report does not exclude the possibility of facet injury.
51. The employment standard review, and the RAAF in its discharge advice to the Respondent, described the impairment which caused the Applicant's incapacity as "chronic cervical strain". That is a very broad and non-specific diagnosis, but it does not appear to us to be inconsistent with the view expressed by Dr Finch. Dr Finch in his evidence before us accepted that cervical strain was another way of describing the condition he had diagnosed.
52. That is, Dr Finch's view as to the Applicant's impairment which caused her incapacity at the time of discharge appears consistent with all the views of other medical practitioners contemporary to that time and best accounts for the continuing nature of the Applicant's physical symptoms over a long period of time.
53. We also regard the views expressed by Dr Finch as to the nature of the relevant impairment as consistent, or at least not necessarily inconsistent, with views as to the Applicant's condition since that time.
54. Dr Hamzah, who has been treating the Applicant since June 1990, described the Applicant's incapacity as "symptoms of chronic cervical strain with associated facetal joint pain" in his report of 29 May 1995. He has also described the Applicant's impairment as chronic neck pain and cevicobrachialgia in his report of 15 January 2004. These views appear consistent with, if not as specific as, the opinion of Dr Finch as to the Applicant's impairment.
55. None of the treating or examining practitioners, including Dr Finch, have found any significant neurological deficits in the Applicant. However, Dr Finch explained in his evidence before us that this was not inconsistent with his diagnosis. That explanation was given in the following terms in his evidence in chief:
"Now just on this point, in relation to x-rays and CT scans, MRI scans and neurological investigation generally, to what extent is it possible to have ongoing pain patterns and irritation which is simply not picked up on by this form of investigation?‑‑‑Yes, it can happen. It used to be said about 20 years ago that about 80 percent plus of these spinal pain syndromes could not be diagnosed accurately, and it has now improved to above half, 50 percent if you use all the modern techniques available to us. We can usually work out the structure involved in the cause of some of these pain states in about half the cases. Now we are going back over 21 years, we are going back to before MRI came in, and there were early - there were no x-ray changes. Well plain x-ray often doesn't show very much, even in gross injuries that come to post-mortem. You can have a normal plain x-ray, then early CT changes creep in in some of the reports here, there is one here in page 20 of the report, 3 August '94, there is something appearing at the C5/6 level, and then a bit more recently in MRI studies, C5/6. And I think there is probably a more recent MRI if we look for it.
Just following on from that, doesn't it then follow that a neurological examination which doesn't have any specific findings doesn't necessarily mean that a person doesn't have chronic pain?‑‑‑Ie is it in their head? Like are they imagining it?
Yes?‑‑‑No, that is not true at all. I mean you can have a normal - say you have got an upper cervical segment injury, C2/3, you will have a normal neurological examination. It is an injury to a joint in the top of the neck, it gives you a headache and a pain state. The next one down gives you a bit more pain in the neck, but you have a normal neurological examination. So, you know, neurological examinations are very useful but they are often negative. And even more so with EMG and electrical studies, they are often negative."
56. The specialist neurologists who have reviewed the Applicant have not excluded a physical cause of the Applicant's pain. Dr Mastaglia, who reviewed the Applicant on 20 December 1994, described the Applicant as still significantly incapacitated by her neck symptoms and headaches which would collectively interfere with her general mobility and ability to perform specified forms of employment. Dr E G Stewart-Wynne, in his report dated 27 July 1995, described the Applicant's condition as involving chronic neck pain and headaches, and regarded the description "chronic cervical strain" as appropriate.
57. Dr WM Carroll is a neurologist who reviewed the Applicant on 14 December 2004. When asked what were the Applicant's retirement impairments, Dr Carroll responded in a report of 2 March 2005 in the following terms:
"Chronic cervical strain and personality disorder constitute the Applicant's retirement impairments. The Applicant's present impairments are right cervicogenic headache, fibromyalgia and chronic anxiety and dependent personality disorder".
58. Dr Carroll clarified what was meant by this in a supplementary report dated 3 August 2005, in which Dr Carroll described the physical impairments which existed at the time of the Applicant's retirement as being "cervical strain (manifesting as cervicogenic headache and fibromyalgia)". That report explains that cervicogenic headache arises from irritation or pain sensitive structures in the craniocervical junction and can be caused by soft tissue injury, minor degrees of cervical spine arthritis, or even develop in the consequence of environmental stress causing muscle contraction. Fibromyalgia is a term for localised areas of chronic tendinitis in and around the shoulder girdle and cervical spine, resulting in discomfort and for which no specific neuropathic or radiculopathic injury can be identified. That is, in referring to cervicogenic headache and fibromyalgia Dr Carroll is attempting to describe in current terms the impairment which existed at retirement.
59. Dr Carroll also accepted in cross-examination that it was possible to have chronic and severe pain without identifiable neurological deficit. The following exchange subsequently took place with the Tribunal:
"…can you still have pain in sort of the area that the applicant has described without necessarily seeing anything being shown up on the scans or the MRIs, for example?‑‑‑Yes, yes. Without necessarily invoking the complex regional pain syndrome that Dr Finch and others have - that is, I am not saying they are wrong, I am just saying that you can still have local pain without seeing - due to a problem with pain nerve fibres - without necessarily seeing anything on the scans, yes.
All right. And can that - in terms of that local pain, can that be a persistent, ongoing pain, as the applicant has described, or as you understand?‑‑‑Yes. Yes, it can."
60. Dr Stevenson's view of the Applicant's current condition is at odds with that of Dr Finch and, in our view, many of the other medical opinions before us. We discuss later the significant limitations in Dr Stevenson's evidence and our difficulty in accepting that evidence. For present purposes it is sufficient to note that Dr Stevenson generally does not express any independent view as to the nature of the impairment which caused the Applicant's incapacity on retirement. That is not surprising, since Dr Stevenson saw the Applicant on only one occasion on 10 June 2003, over 17 years after the Applicant's discharge. To the extent that there is any inconsistency between the evidence of Dr Finch and that of Dr Stevenson, we would prefer the evidence of Dr Finch for the reasons we explain later.
61. On the above review of the evidence we find that the Applicant did suffer from a physical impairment at the date of her discharge which was one of the causes of the Applicant's incapacity at that time. At a high level of generality, and using the language of the time, the impairment might be described as "chronic cervical strain". More specifically, it might be referred to as chronic cervical pain and associated headaches causing nausea and dizziness or to adopt the current terminology used by Dr Carroll "cervical strain (manifesting as cervicogenic headache and fibromyalgia)". To adopt a more specific description, we accept the evidence of Dr Finch that the impairment may be described as an injury to the Applicant's cervical spine, most probably to the C2/3 segmental structures including the facet joint and also to about the C5/6 segmental structure causing some irritation to the nerve roots.
Prescribed Mental Impairment
62. As to the mental impairment, it does not appear to be controversial that the Applicant suffered from a personality disorder and that this was a cause of the Applicants incapacity both in its own right and to the extent that it affected the Applicant's perception of, reaction to and ability to cope with her physical pain.
63. More controversial is the question of whether the Applicant now suffers from a condition (which all the psychiatric evidence appears to regard as distinct from personality disorder) of "Anxiety Disorder, Not Otherwise Specified" or "Post-Traumatic Stress Disorder". The former diagnosis was made by Dr Ding in his report of 26 August 2003 and the latter was made by Dr Monick, a psychiatrist called by the Applicant before us.
64. Putting aside the question of the Applicant's appropriate current diagnosis, we are unable on the evidence before us to conclude that, at the date of discharge, the Applicant suffered from either disorder or, if she did, that such a disorder was a cause of her incapacity at that time. In that regard we note that Dr Monick, who made a current diagnosis of Post-Traumatic Stress Disorder, said in cross examination that she was unable to remark on whether the Applicant had that disorder at the time of discharge as she didn’t see the Applicant until 1995 and it was not unusual for Post Traumatic Stress Disorder to have a delayed onset. Dr McCarthy, a psychiatrist called by the Respondent who disagreed with the current diagnosis of Post Traumatic Stress Disorder, would have expected that disorder to have manifested itself sometime after the accident. However we are unable to infer from that evidence that the Applicant did in fact suffer from such a disorder at the time of her discharge, or that if such a disorder did exist it was in fact a cause of the incapacity which was the reason for the Applicant's discharge. We note that, while the Applicant was under psychiatric review from an early stage after her accident, there is no contemporary evidence that the condition was diagnosed or suspected at or around the time of the Applicant's discharge. While it may be that there was a failure to diagnose such a disorder at that time, the evidence before us does not enable us to positively conclude that there was such a misdiagnosis or failure to diagnose such a condition.
65. Nor are we able to conclude that Post Traumatic Stress Disorder, or General Anxiety Disorder, is causally connected with the impairments that we have found were causes of the incapacity by reason of which the Applicant was retired. While Dr Monick gave evidence that the Post Traumatic Stress Disorder which she diagnosed arose out of the motor vehicle accident, she confirmed in cross examination that it was not her evidence that the disorder arises out of the Applicant's personality disorder or physical neck injuries. As we have already noted, the question for us is not what impairments arise out of the motor vehicle accident. An impairment which was not present at the time of retirement, or was not causative of the incapacity which was the reason for the Applicant's discharge, is not a prescribed incapacity even though it may be related to the accident.
Conclusion
66. Therefore we find that the prescribed physical and mental impairments of the Applicant are the physical impairment which we have variously described at paragraph 61 above and personality disorder.
Diminished Capacity
67. Having made the above findings, it is then necessary for us to consider the extent to which the prescribed physical and mental impairments we have identified diminished the capacity of the Applicant to undertake civil employment as a fruit picker/packer or a kitchenhand as at the relevant date of 17 October 2003.
68. We accept the evidence of Dr Finch that the prescribed physical impairment we have identified has diminished most if not all of the Applicant's capacity to undertake those kinds of employment.
69. On 22 May 2003, prior to the relevant date, Dr Finch had described the Applicant's symptoms, which he attributed to the prescribed physical impairment, in the following terms:
"Currently Mrs Briggs complains of fairly constant cervical symptoms radiating to the right trapezius, scapula and right upper limb. She also experiences paraesthesia and numbness ….
On examination I found a limited range of cervical movement, especially rotation and lateral flexion by about 20% of range. She was tender over a number of cervical facet joints from C2/3 to C5/6 inclusive on the right. The left side was not tender. She had a positive right brachial plexus stretch test causing pain to radiate into the right upper limb. There was sensory hyperaesthesia over the right thumb, index finger and thenar eminence. Motor power was reduced in the right upper limb in a generalised antalgic fashion. Reflexes were intact."
70. Shortly after the relevant date, in a report dated 2 February 2004, Dr Finch said that:
"It is my opinion that Mrs Briggs is not fit to work as a kitchenhand. She was involved in a traffic accident in 1983. She attempted to continue work whilst she was in the airforce until 1986 when she was medically discharged. She has not worked since. Mrs Briggs requires help at home. She finds housework such as mopping or sweeping to cause an exacerbation of her pain.
Her medical condition has, of anything, worsened over the years and extended to involve her right upper limb. I initially saw her on 23/7/85 and have seen her on numerous occasions over the years. As there has been little improvement, and if anything a worsening, I would continue to certify her unfit as a kitchenhand.
71. In his most recent report to the Applicant's solicitors of 13 October 2005 Dr Finch said:
"10.The likely duration of her period of incapacity is from about 1986 to date and into the future.
11I think it is unlikely that your client will ever be able to work again in any form of work for which she is reasonably qualified by education, training or experience. In particular I would state that she is not fit to work as a kitchenhand and I have stated this on several occasions previously."
72. The evidence of Dr Finch before us accorded with the above reports. In questioning, Dr Finch found some difficulty in defining the degree of the Applicant's impairment in terms of the classifications provided for by the Act. However, he did express the view that the Applicant was probably unfit to work as a kitchen hand or fruit picker/packer at all. On that basis he agreed that the degree of impairment under the Act would be 100%, although in terms commonly used in the field of workers' compensation he would have described the Applicant as having a 15-20% cervical impairment. It was perhaps this unfamiliarity with the test provided for by the Act which led Dr Finch to express the view, in the course of cross-examination, that he would classify the Applicant's condition as moderate. We took this part of Dr Finchs' evidence to refer to the degree of the impairment rather than the degree to which the impairment diminished the Applicant's capacity to undertake civil employment as a fruit picker/packer or a kitchenhand. Taking Dr Finch's evidence as a whole, he made it clear that he regarded the Applicant as unable to perform those tasks by reason of what he would describe as a moderate impairment involving the Applicant's cervical spine.
73. These views of Dr Finch are consistent with those of Dr Hamzah, who in a report of 15 January 2004 considered the Applicant to be totally incapacitated for any form of work. He maintained this view in his evidence before us, in the following terms in his evidence in chief:
"You disagreed with that opinion and perhaps you could tell the Tribunal why you didn't think she was able to seek employment as a kitchen hand?‑‑‑Well, the basic problem with your client was that she had these sudden episodes of headaches, nausea, etcetera, which required her to lie down. And if she happened in a situation where she was actually working as a kitchen hand amongst what I thought was rather hazardous things, this could be a real worry to everybody else around her as well as herself. I did not really consider that to be an appropriate occupation for her to do.
Okay, thank you for that. Now, if I can just perhaps take you to your - again your report of 16 January 2006 and to the second page of that report under subparagraph e. And you were asked whether Mrs Briggs is totally incapacitated for work as a kitchen hand or fruit and vegetable picker, and you're of the view that Mrs Briggs remains totally incapacitated, and again I would ask why you are of the opinion that Mrs Briggs is totally incapacitated for those forms of employment?‑‑‑For the very same reason that I think that she - it will - would be very hazardous for her to work in that sort of environment, because her symptoms have not changed at all, and she still continued getting these sudden episodes of head pain and headache and nausea and vomiting and virtually collapsing."
74. When asked to define the extent of the Applicant's diminished capacity by reference to the criteria contained in the Act, Dr Hamzah described the extent as "large", which in the context of the questions directed to him reflected a percentage of incapacity of more than 60%.
75. The evidence of both Dr Finch and Dr Hamzah before us made it clear that they were describing the effect of the prescribed physical, as opposed to mental, impairment.
76. Applying the test provided for by the Act, Dr Carroll expressed the view that the Applicant did suffer from a diminishment of her capacity to work of 60% or more. However, he regarded the physical component of that diminishment as comparatively small. Dr Carroll expressed the view that the bulk of the incapacity of the Applicant resulted from her psychological impairment causing a perception of pain.
77. We prefer the evidence of Drs Finch and Hamzah to that of Dr Carroll in this regard for several reasons. Firstly, Dr Carroll reviewed the Applicant on only one occasion, while Drs Finch and Hamzah have reviewed the Applicant on a large number of occasions over an extensive period of time. Secondly, Dr Carroll's views appear to us to involve a psychiatric diagnosis which is not within Dr Carroll's field of expertise as a neurologist. That view as to the extent of incapacity caused by psychological impairment is also inconsistent with the evidence of the psychiatrists who gave evidence before us, all of whom regarded the impact of the Applicant's existing psychiatric impairment as small. Thirdly, to the extent that the views of Dr Carroll fall within his field of expertise, they appear to be based on the absence of discernible neurological deficit. However, as we have noted above, Dr Carroll accepted that chronic pain of the kind reported by the Applicant could exist without those signs.
78. Dr Stevenson's evidence was that the Applicant "had no true medical incapacity", but had a presentation which might be described as "inconsistent and clearly functional", "illness behaviour" or "malingering". In his report of 18 June 2003, he regarded the degree of any incapacity caused by chronic cervical strain as "minimal".
79. We did not find Dr Stevenson's evidence to be at all persuasive. It was based on a single consultation on 10 June 2003 which lasted around an hour. That is to be contrasted with the extensive history which both Dr Finch and Dr Hamzah had with the Applicant. The history which Dr Stevenson recorded in his report is not consistent with the evidence before this Tribunal. Often, the discrepancies were potentially significant. For example, the account of the nature of the accident was quite different from that of the Applicant both in her evidence before us and in a number of accounts given shortly after the accident. The history also referred to the Applicant running and horse riding from the three years after the accident until 1985. Again that is inconsistent with the evidence of the Applicant and the accounts which she has repeatedly given to her treating practitioners. Regardless of the cause of those inaccuracies, their existence leads us to view his opinions reached on the basis of that history with considerable suspicion. The view that the Applicant was malingering was also not generally supported by other medical opinion of the witnesses who gave evidence before us. We have no hesitation in preferring the evidence of Drs Finch and Hamzah, whose area expertise we also regard as more relevant to the present issue, to that of Dr Stevenson.
80. The submissions of the Respondent also referred to a report of Dr Q Malone, a neurosurgeon, dated 14 January 2004 who concluded that:
"Mrs Briggs presents with a regional pain syndrome affecting the right side of the neck and the right arm. I am not sure of the aetiology of this pain syndrome and find some of the behaviour bizarre and non-neurologic. I could no define any neurological impairment in the upper limbs, I believe that her MRI study is relatively normal."
81. Dr Malone did not give evidence before us. To the extent that he is unable to find a neurological cause of the Applicant's pain, his evidence is not inconsistent with that of Dr Finch. It is not clear from his report what behaviour Dr Malone found "bizarre", or what is the significance of the categorisation of behavior as "non-neurologic". The extent to which Dr Malone had access and regard to the considerable volume of the Applicant's recorded medical history is not clear from his report. It does not appear that Dr Malone saw the Applicant on more than one occasion, and the Applicant was not given the opportunity to explore the opinion of this witness in evidence before us. In all those circumstances, we are not prepared to attach any significant weight to this report so far as it enters into the areas which are the subject of differing medical opinions held by witnesses who did give evidence before us.
82. Generally the psychiatrists who have evidence before us did not seek to express any view as to the existence or extent of the Applicant's incapacity resulting from physical impairment. That included Dr Ding who gave evidence that his focus during his one consultation with the Applicant was on the existence of psychiatric disorders rather than the Applicant's physical incapacity. While there are some parts of Dr Ding's report and evidence that appear to concur with some of the views as to physical impairment expressed by Dr Stevenson, Dr Ding appears there to be relying on Dr Stevenson's report in relation to an area outside Dr Ding's area of specialty. For reasons we have expressed, we would regard that reliance as misplaced and would discount those aspects of Dr Ding's evidence by reason of that evident reliance. The assessment of the continuing existence of any physical impairment, and the incapacity that it produces, is in any event neither part of Dr Ding's area of expertise nor matters on which he focussed in his consultation with the Applicant.
83. For the above reasons, we find that the Applicant's prescribed physical impairment had, on 17 October 2003, completely or almost completely diminished her capacity to undertake civil employment as a fruit picker/packer or a kitchenhand.
84. In those circumstances it is unnecessary for us to resolve the conflicting psychiatric evidence as to the nature of the Applicant's metal impairment. In any event, all of the psychiatrists regarded the extent to which any mental impairment, considered alone, diminished the Applicant's employment capacity as being small.
Conclusion
85. In view of our findings above we consider that, as at 17 October 2003, the proper classification of the Applicant's percentage incapacity in relation to civil employment set out in s 30(1) of the Act was "60% or more, class A". This follows from our finding that the Applicant's prescribed physical impairment completely or almost completely diminished her capacity to undertake the kinds of civil employment which a person with her skills, qualifications and experience might reasonably undertake.
86. In reaching that conclusion, we are conscious of the caution expressed by Davies J in Re Thomson and Defence Force Retirement Benefits Authority (1987) 6 AAR 424 at 433, adopted by the Court in House at 143, that the determination of a percentage of incapacity is not to be undertaken as if it were a mere 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) of the Act, a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment. In circumstances where we are satisfied that the prescribed physical impairment has completely or almost completely diminished the Applicant's capacity to engage in the relevant kinds of civil employment, we have little difficulty in concluding that the degree of that diminishment expressed in percentage terms is greater than 60%.
87. The Applicant was classified as Class A prior to the decision of the Respondent's delegate to reclassify her. For the reasons we have expressed, we are not satisfied that, as at 17 October 2003, the Applicant's percentage of incapacity in relation to civil employment was such that her classification should be altered. Therefore, the decision to reclassify the Applicant should have been set aside by the Respondent when it reconsidered the decision of its delegate.
DECISION
88. For the above reasons, the Tribunal:
(a)sets aside the decision under review; and
(b)substitutes a decision that:
(i)the decision to reclassify the Applicant from "60% Class A" to "10% Class C" with effect from 17 October 2003 be set aside; and
(ii)the Applicant's classification of "60% or more Class A" remain unchanged.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member and Dr D Weerasooriya, Member
Signed: ......(Sgd. Ms R Riberi)................
AssociateDates of Hearing 26-28 April 2006, 19 September 2006
Date of Final Written Submissions 20 October 2006
Date of Decision 9 May 2007Solicitors for the Applicant Mr R Harrison
Dwyer Durack
Counsel for the Respondent Ms B Eales
Solicitor for the Respondent Ms C Scarr
Australian Government Solicitor
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