Commissioner for Superannuation v Benham, C.M
[1988] FCA 190
•14 APRIL 1988
Re: THE COMMISSIONER FOR SUPERANNUATION
And: CHERYL MAY BENHAM
No. ACT G68 of 1986
Administrative Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)
CATCHWORDS
Administrative Law - Administrative Appeals Tribunal - Appeal - Superannuation - Retirement on ground of invalidity before maximum retirement age - Pre-existing physical condition specified in benefit classification certificate - Subsequent physical condition causing, or substantially contributing to, incapacity resulting in early retirement - Whether "connected with" pre-existing condition.
Administrative Appeals Tribunal Act 1975 (Cth), s.44
Superannuation Act 1976 (Cth), s.66
HEARING
CANBERRA
#DATE 14:4:1988
Counsel for the applicant: Mr H.G. Shore
Solicitor for the applicant: Australian Government Solicitor
Counsel for the respondent: Mr K.G. Crispin
Solicitor for the respondent: Mr B. Collaery
ORDER
The appeal be dismissed.
The applicant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36
of the Federal Court Rules.
JUDGE1
This appeal, which is brought by the Commissioner for Superannuation ("the Commissioner") pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), seeks an order setting aside a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 17 September 1986. The issue before the Tribunal concerned the level of benefits to which the respondent, Cheryl May Benham, is entitled under the Superannuation Act 1976 (Cth) ("the Superannuation Act"). The respondent claims she is entitled to invalidity benefits in accordance with sub-s.66(1) of the Superannuation Act. The Commissioner asserts that her entitlement is to the reduced benefits provided by sub-s.66(2). The Tribunal upheld the respondent's claim.
Sub-section 66(1) of the Superannuation Act provides, subject to certain provisions which are not material for present purposes, that, except where sub-s.66(2) applies, a person who ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining maximum retiring age is entitled to certain benefits. Sub-section 66(2) provides for reduced benefits to be paid where -
"(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."
The issue of benefit classification certificates is provided for in s.16. The Commissioner may, for the purposes of that section, require a person who proposes to become or becomes an eligible employee, as defined in sub-s.3(1), to undergo such medical examination or examinations by an approved medical practitioner or practitioners as the Commissioner determines (sub-s.16(2)). A report or reports of the result or results of the medical examination or examinations is to be furnished to the Commissioner (sub-s.16(3)). Sub-section 16(4) provides:
"(4) The Commissioner shall consider the report or reports, and such other matters (if any) as the Commissioner considers relevant, and, if he is of the opinion that the person is not likely, by reason of or for a reason connected with a physical or mental condition or conditions referred to in the report or reports, to continue to be an eligible employee until the person attains his maximum retiring age, the Commissioner shall issue a benefit classification certificate to that effect, being a certificate in which the relevant condition or conditions is or are specified."
On 4 April 1980 the respondent was appointed as an officer of the Australian Public Service under a scheme, known as the Special Placements Scheme, which provided for the employment of persons who were disabled or otherwise disadvantaged. She took up a position in the Department of Veterans' Affairs. By reason of her appointment, the respondent became an "eligible employee" for the purposes of the Superannuation Act. On 6 February 1981 a delegate of the Commissioner, pursuant to sub-s.16(4) of the Superannuation Act, issued in respect of the respondent a benefit classification certificate which specified a number of conditions including the physical condition "macular dystrophy". On 17 November 1983, pursuant to the provisions of s.19 of the Commonwealth Employees (Redeployment and Retirement) Act 1979 (Cth), the respondent was retired from the Australian Public Service with effect from 20 July 1983. A certificate had been issued under s.14 of that Act that the respondent should be retired because she was, in consequence of physical or mental incapacity, incapable of performing her duties. At the date of her retirement she was 31 years of age. She was, thus, a person who ceased to be an eligible employee by reason of retirement on the ground of invalidity before attaining her maximum retiring age (sub-s.66(2)(a)). The benefit classification certificate referred to above was in force immediately before the respondent's retirement so that the requirement of sub-s.66(2)(b) was also fulfilled.
On 19 December 1983 a delegate of the Commissioner determined that the respondent's entitlement was to benefits under sub-s.66(2) of the Superannuation Act. That determination was, at the respondent's request, reviewed under s.154(4) of the Superannuation Act. That review resulted in the determination dated 19 December 1983 being affirmed. The respondent then sought review by the Tribunal of that determination.
The question for the Tribunal was whether the incapacity which was the ground for the respondent's retirement from the Australian Public Service was caused, or was substantially contributed to, by her macular dystrophy or by a physical or mental condition or conditions connected with such macular dystrophy. If the Tribunal were of that opinion, the respondent's entitlement to invalidity benefits under the Act would be limited to benefits in accordance with sub-s.66(2). If it were not of that opinion, the respondent's entitlement would be to the higher benefits payable in accordance with sub-s.66(1).
The respondent was born in Sydney on 21 October 1951. In childhood she was diagnosed as having the condition of congenital macular dystrophy resulting in impaired visual acuity and reading problems. It seems to have been recognised that her vision would become worse in time. However, she successfully completed her primary and secondary schooling in Sydney.
Before entering the Australian Public Service, the respondent had completed a Bachelor of Arts degree course at Macquarie University at Sydney and had completed two years' study at the University of Adelaide towards a Doctorate of Philosophy. She did not complete the course of study for that degree but that was due to reasons unconnected with her impaired eyesight. She married in late 1976 and did some casual nursing until early 1980. She went to Canberra in February of that year because her husband had taken a position there.
Notwithstanding her eye condition, she did not have much difficulty with reading while at the University. During that time she did most of her reading in bed and this allowed for much more flexibility than sitting at a table. The subjects she studied were such that not a great deal of reading was required and what was required was able to be done in a reasonably comfortable posture. The Tribunal appears to have accepted that, prior to joining the Australian Public Service, she did not have any posture-related problems.
The respondent commenced her Public Service career as a Clerk Class 1 but was progressively promoted to Clerk Class 4. She found the work she was given, which included reading faint documents and small type, caused her difficulties, particularly because of the inadequate lighting that was available in the offices of the Department of Veterans' Affairs. She had referred this difficulty, about the middle of 1980, to the Special Placements Officer - an officer of the Public Service Board who was appointed for the purpose of dealing with problems of persons employed pursuant to the Special Placements Scheme - but his response was "not helpful". Her supervisor was at first most helpful but became less so as she progressed in her career. She had approached the Department of Social Security about mid-1980 for a specific reading aid, but found that she was not eligible for one under the social services legislation. What she had sought was a closed circuit television which displayed an enlargement of the reading matter on a vertical screen, thus avoiding the need to bend over to get close to what she was reading. Without the aid she found it necessary to "crouch very low and often for long periods" to see the material on which she was working. In December 1980 she had again approached the Special Placements Officer, without success. She also approached her supervisor who, however, made no change to the work place. Some months later she had managed to have two light fittings removed from the lighting panel above her desk to reduce the glare. In early 1981 she had again spoken with another of her supervisors and discussed the possibility of getting a closed circuit television but he had discouraged that because, he said, it would make her look different to others in the office. In February 1982 she had again spoken to the Special Placements Officer, who was a different person from the officer she had seen before, and found that person very helpful. In consequence, various meetings and assessments were planned and conducted during the early part of 1982. She had her vision tested by the Royal Blind Society in Sydney in June 1982 and found a closed circuit television reading aid that suited her needs. However, an officer from the Training Section of her Department told her that no action could be taken until a report came from the Royal Blind Society. This was some time in being sent to the Department. In the event, no reading aid was provided.
It became necessary for the respondent to do a lot of reading in her employment and this she found to be embarrassing, tiring and uncomfortable, though not painful. The Tribunal accepted that the posture she habitually adopted to read was one which reduced the distance between the page (presumably resting on the desk) and her eyes to approximately 10 centimetres. There was discomfort at the back of her neck and slightly to the right side. Later, the pain radiated to the right shoulder. She described the pain in her neck as follows:
"Well, it increased very slowly. I do not know - it tended to come on during the day and then go away at night. There was a gradual continual period. It started earlier and earlier in the day as time went on, and finally became constant."
In November 1982 she saw her general practitioner who gave her a certificate that she was unfit for work. She did not return to work after that, being on sick leave until the date of her retirement.
The Tribunal found, on the basis of the uncontradicted evidence of the respondent, that she sought visual aids during the period 1980 to 1982 and that she was not provided with any suitable aid. The Tribunal also stated in its decision that it accepted the following facts which had been agreed between the parties -
"(1) Because the applicant (respondent) had been provided with no reading aids and because of her macular dystrophy, she had adopted an abnormal posture to read in her employment.
(2) Because she adopted such a posture, she aggravated a pre-existing condition of the cervical spine which would not otherwise have been aggravated to the extent of requiring invalidity retirement."
It is common ground between the parties that the incapacity which was the ground for the respondent's retirement was neck pain resulting from the aggravation of a pre-existing condition of cervical spondylosis.
The Tribunal rejected a submission put to it on behalf of the Commissioner that it should find that the incapacity which was the ground for the respondent's retirement was caused, or was substantially contributed to, by her macular dystrophy, the condition specified in the relevant benefit classification certificate. It was not contended before the Court that the Tribunal erred in law in rejecting that submission.
In the alternative, it was submitted to the Tribunal on behalf of the Commissioner that it should find that the incapacity which was the ground for the respondent's retirement was caused, or was substantially contributed to, by a physical condition connected with the condition of macular dystrophy specified in the benefit classification certificate. This submission required the Tribunal to find that the ground for the respondent's retirement was caused, or was substantially contributed to, by the physical condition aggravated cervical spondylosis and that that physical condition was "connected with" the condition of macular dystrophy. The Tribunal had no difficulty in making the first of those findings. It was not, however, prepared to make the second.
The Tribunal referred in some detail to the judgments of the members of the Full Court of this Court (Davies, Beaumont and Pincus JJ.) in Commissioner for Superannuation v. Miller (1985) 8 FCR 153. The question for its decision was then identified as being "whether the posture adopted by the applicant (respondent), the event that linked her cervical spondylosis with her macular dystrophy, is a sufficient connecting link between those two medical conditions" for the purpose of the relevant statutory provision. The Tribunal continued:
"In order to fall within the terms of that provision, the medical condition that caused the neck pain must be connected by 'a chain of events' with a medical condition that is specified in the relevant benefit classification certificate, in this case, macular dystrophy. We do not read the judgments in Miller's case as requiring that the chain of causation must be comprised only of what might be termed medical events - though that was no doubt the situation in Miller's case and has been so in numerous other cases that have come before this Tribunal. We are of the opinion that the comments in particular of Davies J. embraced a wider scope than purely medical conditions when he referred to a chain of events. We do not regard the adoption of an unusual posture for reading, such as the applicant was forced to adopt, as itself constituting a medical condition."
The Tribunal went on:
"While we take the view that the connecting link or links need not in all cases consist of a medical condition or conditions, it does not follow that, so long as there is a traceable chain of events, that is sufficient to satisfy the terms of s.66(2)(c)."
The Tribunal regarded what was said by Davies J. and Pincus J. in Commissioner for Superannuation v. Miller (supra) as requiring, in order that what may be called the second limb of par.66(2)(c) be satisfied, that the Commissioner (or, on review, the Tribunal) be of opinion that the connection between the two medical conditions - that referred to in the benefit classification certificate and that which caused, or substantially contributed to, the incapacity which resulted in the employee's early retirement - "consist of a substantial causal link". The Tribunal then expressed itself as respectfully adopting that view.
In upholding the respondent's claim, the Tribunal said:
"The applicant (respondent) adopted a particular posture which resulted in at least the aggravation of her cervical spondylosis, and she would not have had to adopt that posture but for the fact that she suffered from her macular dystrophy, a condition that ordinarily has no relationship with cervical spondylosis. We have concluded on the facts that that link falls short of the substantial causal link that s.66(2)(c) requires. The abnormal posture she adopted was not a necessary consequence of her macular dystrophy, though it was not unrelated to it. But it appears to us that that posture was the product of her working conditions and in particular the failure of the Commonwealth to provide her with adequate facilities, in recognition of her Special Placement status, to enable her to cope with her duties as they became more demanding. We see the link in this case as something more than a merely casual link but it is not a substantial causal link."
The Tribunal then referred to what it said was "a useful discussion of the matter of causation" in Haber v. Walker (1963) VR 339 per Lowe J. at p 349 and per Smith J. at p 358. Having quoted the relevant passages, the Tribunal expressed itself thus:
"If the matter were approached along the lines of Haber v. Walker, we would see the chain of causation broken by the failure to provide adequate visual aids to the applicant in her employment."
Counsel for the Commissioner submitted that the Tribunal had erred in law in construing the words "connected with" in par.66(2)(c) as requiring that there be a substantial causal link between the physical or mental condition specified in the benefit classification certificate issued in respect of the employee and the physical or mental condition which caused, or substantially contributed to, the incapacity which resulted in the employees' early retirement. The Tribunal's error was said to have arisen from its perception that that was the construction of the provision adopted by Davies and Pincus JJ. in Commissioner for Superannuation v. Miller (supra) and that that construction was binding upon the Tribunal. It was submitted that that case is not authority for the proposition that the words "connected with" in par.66(2)(c) require that there be a substantial causal connection between the two conditions or, indeed, that there be a causal connection at all.
It was further submitted that, in so far as what was said in Commissioner for Superannuation v. Miller (supra) tended to support the construction of the provision adopted by the Tribunal, the statements made were obiter dicta. A formal submission was also made that, if that case were properly to be regarded as authority for the construction of par.66(2)(c) adopted by the Tribunal, the case was wrongly decided.
Counsel for the respondent submitted that the decision of the Tribunal was correct and did not reflect any error of law on its part.
Commissioner for Superannuation v. Miller (supra) was an appeal from the Tribunal. It concerned the question whether Heather Lynette Miller, the respondent, who had been employed as a switchboard operator by the Australian Telecommunications Commission and who had been retired on 27 August 1980 on the ground of invalidity before attaining her maximum retiring age, was entitled to benefits under sub-s.66(1) of the Superannuation Act or only to the reduced benefits payable under sub-s.66(2). The incapacity which gave rise to the respondent's retirement was her inability to elevate her arms by reason of adhesions which developed following surgery. In December 1977 the respondent had been diagnosed as suffering from hormonal mastopathy with multiple lumps in both breasts. Surgery was advised and in February 1978 a subfacial mastectomy with prosthetic reconstruction was carried out. Although the mastectomy was successful, the respondent developed painful adhesions in the breast as a result of a fibrous reaction in the tissue around the prosthesis. The respondent's reaction was aggravated by the excessive use of the arms required in her employment as a switchboard operator. Her condition worsened to the point where she was declared permanently unfit for work involving elevation of the arms. Her retirement followed.
A benefit classification certificate issued in respect of the respondent specified the condition "hormonal mastopathy presenting as breast lumps". (Whether the benefit classification certificate had been validly issued was raised but that matter is not of present relevance.) The substantive question was whether the fibrous reaction was "connected with" the hormonal mastopathy so as to satisfy the requirement of par.66(2)(c) of the Superannuation Act. The Tribunal answered that question in the negative. The Court unanimously held that it was in error in reaching that conclusion.
The Court was constituted by Davies, Beaumont and Pincus JJ. Davies J. was of opinion that the words "connected with" in par.66(2)(c), and in sub-s.16(4) and par.16(10)(b), were "concerned with questions of causation. His Honour said, at p 154-5:
"In the context, it appears to me that the words 'connected with' were introduced to deal with the circumstance where the early retirement arises not from the medical condition which existed at the time the employee became an eligible employee but as a result of another medical condition that arose out of or developed from that condition. Thus, in the present case, the immediate or proximate cause of the retirement was not the employee's condition of 'hormonal mastopathy presenting as breast lumps', which had ceased to exist, but from the adhesions which had arisen as a result of the operation on the employee's breasts.
In the context, I would read the words 'connected with' in ss.16(10)(b) and 66(2)(c) as dealing with the circumstance where the immediate or proximate cause of the incapacity leading to the retirement was a medical condition other than the condition existing at the time the employee became an eligible employee but where, nevertheless, there is a chain of causation such that the medical condition existing at the time when the employee became an eligible employee can be said, through a chain of events, to have caused or substantially contributed to the incapacity causing the retirement."
Beaumont J. did not find it necessary to consider whether the provision, on its proper construction, required that the nexus between the two conditions be one of causal connection or something short of that. In his Honour's view (p.160) the requisite link or association had been established, even if it were necessary for the Commissioner to establish a causal connection for that purpose.
Pincus J. said, at p 163:
"The expression 'connected with' is not very precise. It is my view that the sort of connection which is meant is a causal one. For the purposes of s.16(10)(b) and s.66(2)(c) of the Superannuation Act 1976 (Cth), two conditions are connected with one another if there is a substantial causal link between the two. That may be so because one is a cause of the other, or because both have a common cause. It is my opinion that unless there is a substantial causal link, there is no connection. I appreciate that the word 'substantial' introduces questions of degree, but they are neither questions which need to be resolved for the purposes of this case, nor questions as to which one can usefully give any guidance. The view I have expressed on this point accords, I think, with that set out in the reasons of Davies J.
It is necessarily involved in what I have said that, if there is a substantial causal link between two conditions, they are 'connected with' one another whether or not the final condition was foreseeable."
Counsel for the Commissioner submitted that, notwithstanding that Pincus J. expressed his belief that his view accorded with that of Davies J., his Honour should be taken to have arrived at a construction of the provision which differs in significant respects from that adopted by Davies J. In support of this submission, emphasis was placed upon the last sentence in the passage cited above from the judgment of Davies J. It was said that the construction of the provision adopted by Davies J. requires that there be a direct chain of causation between the physical or mental condition specified in the benefit classification certificate and the incapacity which results in the early retirement of the employee. It was further said that Davies J. "was not seeking simply to establish a cause or connection between the two conditions specified in the section but was going immediately from the start and then to the finish as it were between the original specified condition and the final incapacity". On the other hand, it was said, Pincus J. looked to the two physical or mental conditions and construed the provision as requiring only that there be "a substantial causal link" between them. His Honour's view was said to be wider than that of Davies J. so that the requirements of the provision would be satisfied with less than a direct chain of causation as required on the construction adopted by Davies J.
The Tribunal, so it was submitted, having fallen into error in treating what was said in Miller's Case as requiring a causal connection between the two physical or mental conditions, fell into the further error of requiring the connection to be a substantial causal connection. The error, according to counsel for the Commissioner, consisted in taking the word "substantial" - the word used by Pincus J. in formulating the construction he placed upon the provision - and applying it to what, according to the submission outlined above, was the different construction given to the provision by Davies J.
According to the Commissioner's argument, the words "connected with" are to be given their natural ordinary meaning, a meaning which involves no rider or gloss requiring that the two physical or mental conditions be connected in a causal sense. Alternatively, it was submitted that all that the provision, on its proper construction, requires is that there be "a real and demonstrable connection on a sustainable medical basis" between the two conditions. Counsel referred, in this connection, to the decision of the Tribunal, constituted by Mr E. Smith (Senior Member) and Sir Ernest Coates and Mr Glick (members), in Re Hegedues and Commissioner for Superannuation (16 April 1982 - unreported).
In my opinion the Tribunal was correct in concluding that the majority of the Court in Miller's Case construed the provision as requiring that there be a causal connection between the physical or mental condition specified in the benefit classification certificate relating to the employee and the physical or mental condition which caused, or substantially contributed to, the incapacity which resulted in the employee's early retirement. The last sentence in the passage cited above from the judgment of Davies J. in that case cannot be read in isolation. It must be read in its context. In my opinion, it is clear from a reading of the passage as a whole that his Honour's view was that, in a case where the early retirement arises from incapacity which is caused, or substantially contributed to, by a physical or mental condition other than that specified in the benefit classification certificate, the employee will be deprived of the benefits provided for by sub-s.66(1) of the Act if the decision-maker is satisfied that that physical or mental condition "arose out of or developed from" that specified in the benefit classification certificate. So understood, his Honour's view and that of Pincus J. are in accord and clearly support the view which the Tribunal took.
I am unable to accept the submission that what their Honours said as to the proper construction of the words "connected with" in the provisions then under consideration was obiter dicta. What their Honours said formed part of the reasoning by which they reached the result that the employee in that case was entitled only to the reduced benefits payable under sub-s.66(2) of the Act.
Nor do I think that the Tribunal misdirected itself in law by identifying the question for decision as being whether there was a substantial causal link between the two physical conditions. It may be said that to import the word "substantial" is to put a gloss on the statutory provision and thus depart from the test prescribed by the legislature. In my view, however, to ask whether there is a substantial causal link between the physical or mental condition specified in a benefit classification certificate and the physical or mental condition which caused, or substantialy contributed to, the incapacity resulting in early retirement is but to recognise, and indeed emphasise, what is implicit in the provision when read in the light of its obvious purpose and object. What the provision, so considered, clearly requires is a finding that there exists a causal connection between the two conditions which is sufficient to justify depriving the employee of the invalidity benefits which sub-s.66(1) of the Superannuation Act would otherwise require to be paid.
In the final analysis, the question which was thus posed for the Tribunal's determination was one of fact and degree to be answered upon an evaluation of the whole of the material before it. In approaching that question, the Tribunal identified four factors which, in their coincidence, led to the aggravation of the respondent's lumbar spondylosis. Those factors were the presence of the physical condition macular dystrophy, the absence of any suitable visual aid to enable the respondent to read in a normal sitting position, the unusual posture which the respondent habitually adopted in order to carry out the duties she was required to perform and the presence of the physical condition lumbar spondylosis. But it is not justifiable to conclude, simply because, in that context, it is possible to say that the aggravation of the lumbar spondylosis would not have occurred as it did if the respondent had not suffered from macular dystrophy, that the Tribunal was bound to find that the necessary causal connection had been established between the two conditions. The presence of macular dystrophy was but one of the factors to be taken into account and evaluated. Having done so, the Tribunal concluded, on the material before it, that there was not a causal connection between the two physical conditions sufficient to justify the withholding from the respondent of the benefits to which sub-s.66(1) of the Superannuation Act would otherwise entitle her. The conclusion reached by the Tribunal may be said to involve the proposition that macular dystrophy was a condition without which the aggravation of the lumbar spondylosis would not have occurred and yet was not, in the relevant sense, causally connected with it. But, to say that the decision involves that proposition does not, in my opinion, demonstrate error on the Tribunal's part. In my view, the conclusion which the Tribunal reached was clearly open to it on the material it had before it.
The appeal is dismissed. The applicant must pay the respondent's costs of the appeal.
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