Clayton and Defence Force Retirement and Death Benefits Authority
[2007] AATA 1734
•6 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1734
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600816
GENERAL ADMINISTRATIVE DIVISION ) Re NIGEL CLAYTON Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date6 September 2007
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) John Handley
Senior Member
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS –reassessment of kinds of civil employment to security guard and general clerk – whether assessment as a general clerk and percentage of incapacity appropriate – decision affirmed
Defence Force Retirement and Death Benefits Act 1973 (Cth) s 30, s 34
Defence Force Retirement and Death Benefit Authority v House (1989) 91 ALR 286
Defence Force Retirement and Death Benefit Authority v O’Fee, Federal Court, 6 June 1985, NSW G71/1984
Freeman v Defence Force Retirement and Death Benefit Authority (1986) 5 AAR 156
Re McGovern and Defence Force Retirement and Death Benefits Authority (1998) 16 ALD 791
Re Thomson and Defence Force Retirement and Death Benefit Authority (1987) 6 AAR 424)
REASONS FOR DECISION
6 September 2007 Mr John Handley, Senior Member 1. Mr Clayton (the applicant) has applied to review a reviewable decision that was made by the respondent on 21 July 2006. It was then determined that the kinds of civil employment that the applicant might reasonably undertake were a security officer and general clerk, by regard to a physical or prescribed impairment of chronic low back pain, probable discogenic disease and bilateral patello‑femoral syndrome. The applicant was then classified as having a percentage of incapacity of 50 per cent, which attracted a class B invalidity benefit.
2. The Defence Force Retirement and Death Benefits Act 1973 (the Act), relevantly at ss 30 and 34 prescribes the basis for classification and – for the purposes of the present application – the basis for reclassification. The legislation is complex and has been the subject of a number of decisions in this Tribunal. It has also been the subject of a number of appeals to the Federal Court. Decisions of the Tribunal in the Federal Court have been of considerable assistance in interpreting the legislation and will be referred to later in these reasons.
3. The Act prescribes an entitlement to benefits consequent upon incapacity. The benefit payable is dependent upon a finding of a degree of invalidity assessed by a percentage measure of incapacity with respect to civil employment. The percentage of incapacity is translated into a class of benefit (s 30 of the Act) as follows:
60% or more
Class A
30% or more but less than 60%
Class B
Less than 30%
Class C
As may be seen by the reviewable decision (refer above) the applicant has been assessed as having a percentage of incapacity of 50 per cent attracting entitlement under class B.
4. The respondent has a power under s 34 of the Act to reclassify in circumstances where the percentage of incapacity in relation to civil employment alters. The effect of such a procedure may alter the class of benefit.
background
5. The applicant was formerly a member of the Australian Defence Force who was discharged upon the basis of invalidity retirement on 24 September 1996. He had previously achieved service of 15 years and 290 days and had reached the rank of corporal. It was initially decided to determine incapacity for civil employment at 40 per cent and the finding then made was the kind of civil employment applicable to the applicant was that of security guard. It was initially decided to retire him by reason of the injuries of chronic low back pain, probable discogenic disease and bilateral patello‑femoral syndrome. A delegate of the respondent on 2 October 1996 decided that probable discogenic disease was a speculative diagnosis and excluded it from consideration in assessing the level of incapacity (T50, p73).
6. Thereafter there have been a number of variations to the original decision by new determinations being made by the respondent. Different kinds of civil employment have been found and the percentage of incapacity has been reassessed. In March 2005 another determination reinstated the diagnosis of probable discogenic disease.
7. The applicant also suffers from post‑traumatic stress disorder and depression. Those conditions have not ever been assessed in determining the level of incapacity or invalidity because they were not assessed as contributing to invalidity retirement on 24 September 1996. The medical evidence presently lodged does not point to those conditions being a sequel to the physical injuries which gave rise to the invalidity retirement. It is therefore impermissible for the purposes of assessing entitlement under this Act to have regard to the psychiatric injuries. (Refer s 34(1B) of the Act). This was the subject of discussion at the commencement of the hearing and the applicant acknowledged that the respondent is prohibited from assessing incapacity by reason of the psychiatric injuries. (A Minute from the Department of Defence to a delegate of the respondent on 15 December 2004 (T180, p335) records advice from the applicant that PTSD/Depression was diagnosed in August 2004. The Minute also records that PTSD/Depression was not found to be an illness suffered on discharge from service). It would appear that the applicant has separately sought compensation under the Safety, Rehabilitation and Compensation Act 1988 for those conditions and has been awarded a lump sum of compensation. It would appear that that payment has been made pursuant to s 24 of that Act. He was then represented by a firm of solicitors in Melbourne who are well credentialed in acting for applicants in compensation proceedings. In these proceedings, the applicant was unrepresented. Mr Dillon appeared on behalf of the respondent.
the hearing
8. The reviewable decision was issued by the respondent following a request made by the applicant for reconsideration of a determination made in March 2005. The decision then made was to determine incapacity at 50 per cent (thereby attracting class B) but a finding was made that the kinds of suitable employment applicable to the applicant were security officer and handy person. The respondent upon review varied that determination to the extent of finding that the kind of civil employment of handy person was not appropriate and substituted the civil employment of general clerk. The respondent retained the assessment of incapacity at 50 per cent.
9. On 5 December 2006, Mr J Mander, an orthopaedic surgeon provided a report at the request of the respondent. He was asked to assess the degree of incapacity for the civil employment of security officer and general clerk. He determined that the degree of incapacity for employment as a security officer was approximately 60% maximum. He assessed the degree of impairment for employment as a general clerk at 10% to less than 30% and found that the actual limitation was approximately 25%. He assessed the degree of incapacity with respect to the civil employment of security guard and general clerk at 45%.
10. The assessment of Mr Mander was made by reference to the applicant’s impairment at 15 July 2004. He was asked to consider impairment at that date because it was on that date that the applicant sought a review of the entitlement that he then had to benefits. It was the applicant’s letter of that date which initiated the decision of March 2005 which gave rise to the reviewable decision of July 2006.
11. Despite the assessment made by Mr Mander with respect to the overall capacity to undertake employment as a security officer and general clerk the Authority has retained in the reviewable decision the degree of incapacity previously existing namely 50 per cent. In effect the only variation therefore between the primary decision and the reviewable decision is to alter the descriptions of civil employment by deleting handy person and substituting the employment of general clerk.
12. At the commencement of the hearing the applicant indicated that the only issue that he sought to contest was the assessment made with respect to the degree of incapacity for civil employment as a general clerk. Neither party decided to call medical evidence and it was agreed that the matter would proceed on the applicant’s evidence only and upon submissions which would contain reference to both the evidence heard and to the documents and reports lodged and exchanged prehearing.
13. In the reviewable decision at T221, paragraph 34, the delegate of the Authority recorded that –
. . . the prescribed impairment has diminished his capacity to undertake employment as a security officer to a large degree and general clerk to a small degree, the Authority was of the view that Mr Clayton’s overall incapacity for civil employment remained moderate, at 50%,. . .
14. It appears that the extent of incapacity, described in the delegate’s decision as moderate is a description given to a percentage of incapacity at between 30 per cent and less than 60 per cent thereby attracting a class B entitlement. The descriptor small is a reference to incapacity of 10 per cent but less than 30 per cent and large is a description of 60 per cent or more.
the evidence
15. The applicant relied on two submissions completed by him which were received as Exhibits A1 and A2. He acknowledged that he had been engaged in publishing a number of books (written by him) at his home which he described as a hobby. He has his own website and has also published books for other persons. This involves receipt of a compact disk which he then converts to print. He then binds the print, prints covers and uses a guillotine. He is proficient in the use of a computer and the Windows 2000 system. He disputed that he is qualified to be engaged as a general clerk and said that it would be unlikely that he would ever obtain such employment. His submission recorded that he had applied for in excess of 170 jobs but had not ever been interviewed. He agreed that he had completed some formal training – both academic and practical – but it had been undertaken many years earlier. He submitted that the skills learnt as a publisher together with his previous academic and practical training would not cause him to be attractive to a potential employer seeking a general clerk.
16. In evidence, the applicant said that his physical limitations would restrict his ability to work as a general clerk. He said that he cannot sit or stand for longer than 30 minutes, cannot lift greater than 5kgs in weight and is prohibited from excessive bending and squatting or high reaching.
17. In cross‑examination, the applicant agreed that he did complete a Certificate II in Business (Office/Clerical) at the Peninsula Institute of TAFE in 1998. He agreed that he also passed the course. The timetable of that course was received as exhibit R1 and it records it as having a duration of approximately six months commencing on 16 February and concluding on 19 June. The subjects comprised workplace strategies, finance, computer applications, word processing, front office and office procedures. Each subject has a number of sub‑programs, for example, the subject of word processing involved keyboard technique and operation, word processing operation, business correspondence, audio transcription and speed and accuracy of keyboarding. The subject of front office comprises the topics of reception protocol, mail, telephone operations and office role and function. The subject of office procedures involves records handling, records processing, occupational health and safety and office equipment.
18. The applicant was examined with respect to the above course because it is contained within the Australian Standard Classification of Occupations (ASCO) which describes the duties of a general clerk. The required skill level for the position of general clerk is the completion of a Certificate II which is the same qualification completed by the applicant at the Peninsula TAFE. The applicant also agreed that he had been engaged as an administrative clerk with the 4th Australian Regiment between 20 February 1996 until his discharge in December 1996 but said that the work then involved was not of a general clerical nature consistent with the skills required in the Certificate II course. He said when he was engaged as an administrative clerk, he completed ration reports only for the Army Mess Division.
19. The ASCO criteria for general clerk recorded specific tasks. Of those tasks, the applicant agreed that he had operated business machines and telephone equipment namely, computers, printers, telephones, photocopiers, guillotines and a laminating machine. He said he had used a fax machine but not to any great extent. He also agreed that he was proficient in the use of Windows 2000. He agreed that he sorts, classifies and files information consistent with a CV completed by him (Exhibit R3) where he recorded his skills and abilities as good organisational skills, ability to write reports and keep detailed documentation, experience ordering and maintaining stock/supplies and basic typing speed of 45wpm.
20. To the extent that the ASCO criteria has a requirement of records financial and other information and prepares documents, the applicant was referred to a job specification for the Australian Security Group Pty Ltd which employed him between 2003 and 2004. One of the duties required the applicant to ensure all data entry is entered correctly without error . . . The applicant agreed that he did correctly enter data in that employment.
21. With respect to the remainder of the ASCO criteria the applicant agreed that he did have experience receiving letters and phone messages and entering text on keyboards, providing customers with information about services and had performed receptionist duties. Those skills were evident from his CV, the job description of Australian Security Group, his previous employment in the Army and an assessment completed by Work Solutions Group (Exhibit R5) and more recently his undertaking as a publisher at his home.
classification of incapacity
22. The legislation (s 34(1A)(a) – (d)) prescribes the matters which can only (emphasis added) be taken into account namely:
(a)The vocational, trade, professional skills, qualifications and experience of the recipient member.
(b)The kinds of civil employment that a person with the skills, qualifications and experience referred to above might reasonably undertake.
(c)The degree to which a physical or mental impairment diminishes the capacity of the recipient member to undertake the kinds of civil employment referred to above; and
(d)Any other matters as prescribed.
23. The Tribunal and the Federal Court have delivered a number of decisions which have assisted in interpreting s 34 of the Act. In Re McGovern and Defence Force Retirement and Death Benefits Authority (1998) 16 ALD 791 it was decided that the Tribunal cannot take into account:
(a) the ageing process;
(b) a depressed labour market;
(c) a state of unemployment;
(d) the shortage of employment for those who might engage in a particular occupation;
(e) circumstances foreseeable only in the long term unless made appropriate;
(f) prevention of continuance in non‑civil employment.
(Refer also Defence Force Retirement and Death Benefit Authority v O’Fee, Federal Court, 6 June 1985, NSW G71/1984 McGregor J).
24. Similar sentiments were expressed by Sheppard J in Freeman v Defence Force Retirement and Death Benefit Authority (1986) 5 AAR 156 (Freeman). His Honour also said at 164 that the legislation required observance of
. . .the degree to which a member’s capacity to undertake civil employment has been diminished; . . . The Act itself takes no account of his actual earning capacity at a given time, although the fact that he has engaged in particular employment will be a relevant factor for the Authority to consider when determining his percentage of incapacity.
25. Beaumont J in Freeman at 171 decided that the reference to qualifications in s 34 indicates that the legislature was intending to refer only to formal attainments such as a degree, diploma, licence or certificate rather than some wider notion of the personal accomplishments in the form of his general skill and competence.
26. In order to determine the kind of civil employment that a person with skills, qualifications and experience might reasonably undertake an objective assessment only is to be made (refer Defence Force Retirement and Death Benefit Authority v House (1989) 91 ALR 286; Re Thomson and Defence Force Retirement and Death Benefit Authority (1987) 6 AAR 424). Accordingly it is not permissible to consider subjective assessments of whether a person might reasonably locate, obtain or be selected for the kind of civil employment as determined.
conclusion and reasons for decision
27. Unlike workers’ compensation legislation, the assessment of the degree of incapacity under the legislation in issue by these proceedings is to be measured only by the criteria found at s 34(1A)(a) – (d) of the Act.
28. As may be seen by the applicant’s academic and work experience (both within service and in industry) he does have broad general clerical skills. This is corroborated not only by the vocational assessment report completed in May 2000 (Exhibit R5) but by the applicant’s representations in his CV which was received into evidence as Exhibit R3. Additionally the applicant’s engagement as a publisher of books has exposed him to a broad range of clerical skills involving the use of modern office equipment and machinery. He also has the qualification (refer Freeman) of the Certificate II in Business Skills.
29. I do not need persuasion by the applicant that he, at the age of 44 years, with long standing physical injuries, will have difficulty obtaining employment as a general clerk. But I am not permitted by the legislation and by authority of previous decisions of this Tribunal and the Federal Court to take those matters into consideration.
30. I am satisfied that the applicant does have a degree of incapacity for civil employment. I am also satisfied that the classification of general clerk is a kind of civil employment to which he might reasonably undertake having regard to his skills, qualifications and experience. I agree, having regard to the applicant’s evidence and to the medical reports lodged in these proceedings, that it would be in the applicant’s interest to undertake employment where he can sit and stand at will, be restricted from heavy lifting and be able to avoid excessive bending and squatting. But the modern office which engages persons in general clerical duties would not prohibit the applicant – with his diminished capacity – from undertaking the civil employment as a general clerk. That is to say, he would be reasonably expected to exploit his proficient computer and word processing skills and use a telephone in a seated position and then move to either a standing or walking position to retrieve documents from a printer or to use a fax machine or a photocopier or attend to a counter or reception area. He would then return to his desk and resume work in a seated position. If excessive printing or photocopying or use of a fax machine was required, it is likely that he could undertake that work in a seated position. He would be capable of retrieving stationery items from a storage area, file documents, manage files and receive and post mail.
31. I agree with the assessment made by Mr Mander in his report of 5 December 2006 namely that the incapacity for employment as a general clerk is small with an impairment assessed at between 10 and less than 30 per cent.
32. The findings that have been made with respect to the applicant’s incapacity above are consistent with some of the duties that the applicant was able to undertake in his employment with the Australian Security Group in 2003 and 2004 which was at or about the time that he requested a review of his classification (15 July 2004, T147, p281).
33. This review did not involve any consideration of the assessed degree of incapacity for the civil employment determined by the respondent as a security officer. On 3 September 2004, Dr Munyard assessed the degree of incapacity as a security officer at between 30 per cent and less than 60 per cent. Mr Mander, in an assessment of 14 June 2006 (two years after the claim was made for reassessment), assessed the applicant’s impairment as a security officer at between 60 and 100 per cent. In his report of 5 December 2006 Mr Mander assessed the incapacity as a security officer at 60% maximum, a finding of incapacity, I think less, than the finding he made in his report of 14 June 2006. This finding, if the kind of civil employment was assessed only as a security guard would be sufficient to attract a class A entitlement. But assessment of capacity for civil employment requires consideration of other employment to which an applicant may be able to undertake. The overall assessment of incapacity, converted to a percentage will therefore be modified if the other employment is capable of being undertaken.
34. Having regard to what has been read from the documents lodged and having regard to the conclusions reached above I am satisfied that the kind of civil employment to which the applicant, by regard to his skills, qualifications and experience might reasonably undertake is that of a general clerk. In reaching this conclusion I would assess the percentage of incapacity at more than 30 per cent and less than 60 per cent. When coupled with the assessment as a security guard, (by reference to the assessment of Mr Mander in December 2006 and in the absence of viva voce evidence at the hearing) the overall assessment of incapacity is less than 60 per cent. I am satisfied that the percentage of incapacity for civil employment should be retained at 50 per cent thereby attracting a class B qualification.
35. The decision under review will therefore be affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned: Grace Carney, Personal Assistant
Date of Hearing 20 August 2007
Date of Decision 6 September 2007
Solicitor for the Applicant Applicant Self Represented
Solicitor for the Respondent Mr A Dillon
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