Carr, R.J.J. v Commissioner for Superannuation

[1990] FCA 628

Re: RICHARD JOHN JOSEPH CARR
And: COMMISSIONER FOR SUPERANNUATION
No. G 241 of 1987
FED No. 628

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

HEARING

SYDNEY

#DATE 10:10:1990

Counsel for the applicant: Mr G.J.L. Scragg

Solicitors for the applicant: James Pappas and Associates

Counsel for the respondent: Mr A. Robertson

Solicitor for the respondent: Australian Government Solicitor

JUDGE1

This is an appeal from the Administrative Appeals Tribunal ("the Tribunal") under the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Pursuant to s.44 of the A.A.T. Act, the appeal is limited to questions of law. As to what constitutes a question of law, it is sufficient for me to refer to the judgment of Mason C.J. in Australian Broadcasting Tribunal v. Bond, (1990) 64 ALJR 462, a judgment with which in this respect Brennan, Toohey and Gaudron JJ. concurred.

1. The applicant, Mr R.J.J. Carr, had had longstanding medical problems. He had suffered partial blindness, a psychiatric disorder, epilepsy and at the time of his employment also suffered fractures of his legs. A benefit classification certificate was issued in 1978 during the time of his employment specifying as conditions: "Epilepsy", "Visual Defect" and "Anxiety Depression".

2. The issue which came before the Tribunal was the extent of the superannuation benefit which was payable to the applicant under the Superannuation Act 1976 (Cth) ("the Act") on his retirement. This question turned upon the applicant's circumstances and paragraphs (a), (b) and (c) of s. 66(2) of the Act which read:-
   

"(a) a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age;

(b) there was in force in respect of the person, immediately before the person's retirement, a benefit classification certificate; and

(c) the Commissioner is of the opinion that the incapacity which was the ground for his retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions,"

1. It was put to the Tribunal that the applicant continued to be fit for work and ought not to have been retired on the ground of invalidity as had occurred. The Tribunal rejected the submission in that it rejected the contention that it could review the decision to retire the applicant on the ground of invalidity. The Tribunal was correct in this view. The Tribunal was bound to proceed on the footing that a person had been retired on the ground of invalidity if in fact that was the case. See s.7(1) of the Act. Accordingly, paragraphs (a) and (b) were satisfied.

2. The applicant had been employed at Concord Hospital and had managed adequately despite his conditions of epilepsy, visual defect and anxiety depression. The Tribunal set out the facts which then occurred and which involved fractures to his legs:-
   

"In spite of these problems and in spite of alleged badinage and teasing by fellow employees, the applicant continued to work in the hospital laundry. There were a number of days lost in sick leave as set out in Exhibit 3. He stated his epilepsy was controlled by medication and his partial blindness did not affect his job. In 1979 he fell over at home and fractured the tibia in his left leg. After hospitalization at Gosford he returned to work. On 17th April 1980 the applicant suffered a more serious injury. Crossing Concord Road, Concord, he was struck by a motor vehicle and sustained compound fractures of both his legs. As a result of that accident the applicant was away from his work until about February or March 1982. When he returned to work he was placed back on duty in the laundry but became afraid of further damage to his legs as the result of collision with laundry trolleys. After two weeks back in the laundry, at his own request, he was redeployed to work sweeping gutters and roads in the hospital grounds. He did this work for one or two months until a laundry truck nearly ran him down. He told his Superintendent of the problem and was then redeployed to work cleaning windows. He found this work worrying because of the risk of epileptic fits while working on ladders and because his partial blindness restricted him from seeing cobwebs clearly so as to do his work properly. Following the redeployments mentioned the applicant faced further medical examinations leading to the decision to retire him."

1. The Tribunal, faced with the remaining question posed in s. 66(2), referred to a report given by a Dr Quinn, a medical officer, who listed the conditions which Dr Quinn considered had brought about the retirement and who estimated percentages against each as follows: partial blindness 50 per cent; epilepsy 20 per cent; depression 10 per cent; bilateral tibia and fibula fractures 10 per cent. The Tribunal went on to say:-
   

"We agree with Dr Quinn that all four factors contributed substantially to causing the applicant's retirement. While percentages are not, in our opinion, a proper method for expressing a qualitative analysis of what is a question of mixed fact and law, we take the view that the major contributions arose from the applicant's blindness and the fractures. However we agree that the other conditions also made a not insignificant contribution to a cumulative situation in which the applicant was rendered incapable of carrying out his duties. As three of the four factors were stated on the applicant's BCC and substantially contributed to his incapacity, notwithstanding the earnest and careful submissions made on behalf of the applicant, we have come to the conclusion that the decision under review was correct and the decision is therefore affirmed."

1. Mr G. Scragg, counsel for the applicant, submitted that that decision was unreasonable and that the cause of the retirement was solely or overwhelmingly the orthopaedic condition. However, there was considerable evidence which supported the Tribunal's conclusion. Its decision was not unreasonable. Indeed, I believe I would myself have come to the same conclusion and would have thought it probable that the applicant's blindness and psychiatric problems played a part, together with the orthopaedic problems, in bringing about the applicant's incapacity to work. It appears to have been the interaction of the conditions which brought about the retirement and not any one condition on its own. No one condition overwhelmed the significance of the part played by others. It may well be that it was the orthopaedic fractures which tipped the balance and, when added to the applicant's other medical conditions, brought about the incapacity for work; but that is not to say that it was the orthopaedic condition alone or overwhelmingly which caused the incapacity or that the other conditions did not contribute substantially to that incapacity and thereby led to the retirement.

2. Mr Scragg further relied upon the point that the benefit classification certificate used the term "Anxiety Depression" while the two psychiatrists who gave evidence before the Tribunal preferred the term "personality disorder". Dr D.S. Bell, a psychiatrist called for the respondent, had said in a report:-
   

"A lifelong personality disorder would be the significant cause of the psychiatric disorder Mr Carr had before he was appointed as a permanent officer and it is the same disorder which has been responsible for his psychiatric disorder since then."

Dr Bell also said:-

"It was reasonable to describe the history of psychiatric disorder in the case of Mr Carr as being `Anxiety/Depression'. These words refer to the main symptoms he displayed, which of course is an acceptable method of classifying psychiatric disorder.

...

Clearly Mr Carr has a life long personality disorder of considerable severity. The use of separate axes demonstrates the interaction of the two. Specifically, the anxiety and depression are the manifestations of overt disorder when the individual with personality disorder has reached the limits of his adaptation, or to be more accurate, maladaptation."

On this and other evidence the Tribunal found:-

"... the description of a condition in the BCC as `anxiety depression' should not be regarded as a precise technical description in accordance with the terminology of the American categorisation system known as D.S.M. In our view it sufficiently describes a condition with which the personality disorder existing at the time of the applicant's retirement was connected."

This finding was consistent with the evidence before the Tribunal.

1. A medical condition "anxiety depression" had been specified in the benefit classification certificate. It was the task of the Tribunal as the tribunal of fact to decide what that term meant and to determine whether a medical condition which substantially contributed to the applicant's incapacity was or was connected with the medical condition specified in the benefit classification certificate. I see no error of law in the Tribunal's approach to this matter. Accordingly, paragraph (c) was satisfied.

2. Mr Scragg also submitted that the Tribunal made an inconsistent finding of fact when it stated that it preferred the view expressed by Dr Bernard Bloch, "Physically, he has recovered well from his accident and there is no desirability or merit in orthopaedic assessment." which had received confirmation from a report by Dr Higgs and evidence given by Dr Alexander yet went on to say: -
   

"That is not to say that the injuries did not play a substantial part in the incapacitating of the applicant from work. We believe they did."

1. In my opinion, there was no inconsistency in the Tribunal's findings. Dr Bloch was speaking of the applicant's orthopaedic condition. The Tribunal, however, was speaking in the context of the orthopaedic fractures and their interaction with the applicant's other medical conditions and of the effect that that interaction had in bringing about the incapacity which led to the applicant's retirement. I see no inconsistency between the Tribunal's acceptance of Dr Bloch's evidence and its view that the fractures nevertheless significantly contributed to the applicant's incapacity.

2. I find the reasons of the Tribunal to be a careful and compassionate consideration of the applicant's circumstances. No error appears in its reasons for decision. For these reasons, the application must be dismissed with costs.