Cotton and Defence Force Retirement and Death Benefits Authority
[2003] AATA 403
•2 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 403
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/344
GENERAL ADMINISTRATIVE DIVISION ) Re TONI GAY COTTEN Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr B J McCabe, Member Date2 May 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) B J McCabe
Member
CATCHWORDS
DEFENCE FORCES – retirement and death benefits – invalidity payments – assessment – whether applicant’s level of impairment properly assessed – whether injury to back occurred during Army service
Defence Force Retirement and Death Benefits Act 1973
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
REASONS FOR DECISION
2 May 2003 Mr B J McCabe, Member Introduction
1. The applicant in these proceedings is Ms Toni Cotton. Ms Cotton was discharged from the Army on 15 November 1999 following an injury to her back during training. She was entitled to invalidity payments from the respondent, the Defence Force Retirement and Death Benefits Authority (the Authority). In order to calculate the amount of the benefit, the respondent was required to classify the applicant according to the extent of her incapacity to undertake civil employment under s 30 of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”). A delegate of the Authority assessed Ms Cotton as being in class B under s 30 (that is, suffering from an incapacity of between 30% and 60%) on 9 November 1999. The respondent reclassified the applicant to class C (that is, an incapacity of less than 30%) from 4 May 2001 following a review undertaken on 27 March 2001. The reclassification occurred pursuant to s 34 of the Act, which permits periodic review and reclassification. The applicant has appealed against the reclassification.
2. The Tribunal must decide whether the respondent was right to determine that the applicant’s degree of incapacity for civil employment was 10% (or less than 30%, in any event) as at 4 May 2001, the date on which the review pursuant to s 34 took effect.
The Material before the Tribunal
3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975.. The applicant tendered medical reports from Dr Power (Exhibits A1-A3 and A6), Dr Pye (Exhibits A4 and A5) and Dr Tan (Exhibits A7-A9). The applicant provided a written statement and gave evidence in person. The respondent tendered material obtained under summons from the Department of Veterans’ Affairs. It called evidence from Dr Ashwell and Dr Parkington, and from the applicant’s former husband, Mr Hines.
4. The applicant was represented by Mr Jungwirth of counsel. The respondent was represented by Mr Dubé, a solicitor employed by the Australian Government Solicitor.
The Facts
5. Toni Gay Cotton enlisted the Australian Army on 14 May 1986. She said in her oral evidence that she saw herself as a career soldier who would serve with the Army for at least 20 years. She was promoted to corporal in 1990, and she had begun undertaking courses with a view to being promoted to sergeant in due course. Her Army career was cut short after she was injured during one of those courses on the night of 27 March 1998.
6. Ms Cotton says she was engaged in night manoeuvres with her unit on 27 March 1998 at the Land Warfare Centre, Canungra. She was a section leader. Pits had been constructed in the field using corrugated iron, sandbags and star piquet posts. As she jumped into the pit, she landed on an exposed star piquet and injured her back. She says she suffered intense pain but did not seek medical assistance until the morning when she returned from the field with her unit. She says she was given pain relief and crutches, although there was some uncertainty about the extent to which she was immobilised as a result of the injury. There was some evidence that she had injured her ankle the night before. In the course of cross-examination, Mr Dubé suggested the applicant might have been exaggerating her condition in the immediate aftermath of the accident.
7. Ms Cotton did not have an x-ray until April. She says the x-ray disclosed trauma to her coccyx. She was treated with pain relief and anti-inflammatory medication during this period. She had a steroid injection and she was placed on restricted duties. She underwent a coccygectomy on 24 August 1998 but it provided limited relief, she says. She also had physiotherapy in late 1998, but she said that made the pain the worse.
8. Ms Cotton attended the pain clinic at the Royal Adelaide Hospital on 3 June 1999 after being transferred from Darwin where she had been living. She was given medication and shown how to use a TENS device. The applicant says the medication did not work, but the TENS device gave some relief.
9. The applicant was judged to be physically unfit for service, and she was discharged from the Army on 15 November 1999. The decision with respect to the applicant’s fitness for service was apparently made on the strength of physical examinations and the x-rays taken in April 1998. The medical board report (at T51) attributes her pain and incapacity to the coccyx condition.
10. Ms Cotton was based in Adelaide with her husband and two children at the time of her discharge. She subsequently returned to Maclean in New South Wales to be near her family. She says her pain continued unabated. She was sent for hydrotherapy, physiotherapy and acupuncture – all with little effect. She also saw a number of specialist doctors in connection with her claim being considered by the Military Compensation and Rehabilitation Service (MCRS).
11. The applicant says in her statement that she developed “a dreadful leg pain down my right leg”. She says she lost movement in her leg and foot. After an MRI and a CT scan, Dr Tan performed a microdiscectomy on 11 October 2001. The applicant says she continued to suffer pain in her lower back and leg. The surgery provided no relief, she claims. She was to have an epidural steroid shortly after the hearing.
12. The MRI scan ordered by Dr Tan showed the applicant suffered an L5/S1 disc prolapse. The applicant says this condition was either an injury caused by the incident in the trench in which she injured her coccyx, or it was causally connected to the coccyx injury.
The Medical Opinions
13. Drs Parkington and Ashwell, who gave evidence at the hearing, said there was no causal connection between the disc prolapse and the coccyx injury. They said the symptoms of the two conditions were distinct and it would be very difficult to confuse them. Dr Ashwell said Ms Cotton’s description of her symptoms supported the conclusion she had injured her coccyx, and that treatment of the coccyx would resolve the pain. Mr Baddeley, the surgeon who performed the coccygectomy, appeared to be satisfied in his report of 23 October 1998 (at T14) that the injuries sustained to the coccyx accounted for Ms Cotton’s pain. He was confident she would “return to normal” over the three months following the procedure.
14. Dr Parkington suggested in his evidence there was no connection between the coccyx injury and the prolapsed disc. He suggested the prolapsed disc might have been the product of degenerative disease. While he conceded degenerative disease was relatively unusual in a woman in her thirties, he said a prolapsed disc could occur spontaneously. The condition can develop and worsen rapidly. Dr Ashwell agreed there was no causal connection between the two conditions. He said in his evidence that the applicant had not complained of pain consistent with a diagnosis of prolapsed disc until 1999. He conceded under cross-examination that the applicant might have made some complaints about pain in the lower sacral area before that time.
15. Dr Power, an orthopaedic surgeon, provided a medical report to the applicant’s solicitors dated 25 June 2002. The report was subsequently filed with the Tribunal. Dr Power said Ms Cotton’s prolapsed disc condition was caused by the fall that also injured her coccyx. (Dr Pye, a general practitioner, agreed in his report dated 7 September 2001: see T90). Dr Power pointed out the back pain had not subsided after the coccyxgectomy, which suggested the injury to the coccyx was not the only condition that was present. He also noted there was no history of back complaints prior to the injury.
16. The medical evidence suggests it is unlikely that the injury to the coccyx caused or contributed to the development of the prolapsed disc. But there is a dispute over whether the prolapsed disc was caused at the same time as the injury to the coccyx. Drs Ashwell and Parkington say it was not, while Dr Power says it was. The treating doctors did not investigate other causes of the pain until some time after the original injury. The medical evidence called on behalf of the respondent suggests there was no reason to believe that the coccyx was not the sole cause of the discomfort – although Dr Power’s point that the failure of the coccyxgectomy to resolve the pain should have triggered further inquiries has merit. Certainly there was no MRI or CT scan that might have uncovered the problem, assuming it existed, until comparatively late in the day.
17. In the circumstances, I am persuaded by Dr Power. It is likely the prolapsed disc was caused by the incident in the pit and that the condition was present at the time of the discharge and a source of pain and discomfort. At least some of the pain and discomfort attributed to the coccyx condition was attributable to the prolapsed disc, although I accept that the coccyx might have been the major source of difficulty during 1998.
The Effect of the Application’s Condition on her Lifestyle and Capacity for Work
18. The applicant’s career in the Army was ended by her medical condition, however diagnosed. She was on medical restrictions after the injury until the time of her discharge. She said in her statement she could not sit, stand, bend or walk for long periods, or lift heavy objects. Her work as a clerk became difficult because it involved long periods of sitting at a desk. The pain also disrupted her studies, she said, and she could not lift her children.
19. After leaving the Army and moving to Maclean, Ms Cotton’s marriage to Mr Hines broke down. She was divorced from Mr Hines, who is also a soldier, in August 2001. She retained custody of her children.
20. She has tried to participate in social activities. During 2001, she participated in dance lessons once a week over the course of several months. She said she stopped after she was unable to cope with the pain in her back and leg. She says she has difficulty travelling distances, although she has travelled to Brisbane and the Gold Coast by car to visit relatives. She also says she cannot work although she agreed she occasionally assisted a relative who owned a video store in Maclean.
21. Mr Hines wrote to Comcare to make allegations about his wife and her condition. His letter dated 24 January 2001 is found at T65. He makes a number of allegations of “fraudulent acts” by his former wife. He says she has no trouble working and performing chores around the house and at her brother-in-law’s video store. He says she dances, shops and gardens, all of which involve heavy lifting. He says she takes brisk walks. He also refers darkly to another “investigation for a separate matter of fraud”. Mr Hines gave evidence at the hearing. He elaborated during the course of his evidence on an allegation contained in the letter about a trip to Dreamworld and Wet’n’Wild on the Gold Coast in late 2000. The trip apparently stuck in his memory because it was undertaken as his marriage was failing. It seems the family outing was part of an unsuccessful attempt to retrieve the marriage.
22. Mr Hines was an unimpressive witness. He has not come to terms with his divorce and blames his wife. He was unable to disguise his bitterness in the witness box, and I have no doubt he intended to punish his former wife by giving evidence against her that might prejudice her claim. I am unable to rely on his evidence without corroboration.
23. Mr Dubé questioned Ms Cotton about the trip to Dreamworld and Wet’n’Wild. Ms Cotton conceded she had taken a turn on the Tower of Terror and the Thunderbolt rollercoaster. She denied having ridden on the Wipeout and she did not recall riding on the Eureka Mine Ride at Dreamworld. She also conceded she went on the waterslides at Wet’n’Wild. It is difficult to square this admission with the applicant’s account of her condition. I do not accept a person who suffered the level of pain and discomfort claimed by Ms Cotton could have contemplated going on rides at a theme park that will almost certainly place stress on her back and legs.
The Relevant Legislation
24. Once an individual has been classified under s 30, s 34(1) permits the Authority to reclassify an individual at any time if it is appropriate to do so. When considering whether or not to reclassify a person, the Authority must have regard only to the matters set out in s 34(1A). I will deal with each of the matters in turn.
(a) the vocational, trade and professional skills, qualifications and experience of the recipient member
25. The applicant’s pre-service qualifications are set in the Application for Invalidity Benefits and Superannuation Productivity form at T52. The applicant left school after Year 10 and became an apprentice hairdresser for a year. She spent the year prior to joining the Army as a sales clerk. She had no formal qualifications. After joining the service, Ms Cotton worked as a clerk. She completed her Year 12 certificate in 1997 and obtained a certificate in personnel administration. After leaving the service, she enrolled in a Bachelor of Arts program. She has also done some work as a casual sales assistant in her brother-in-law’s video store since moving to Maclean.
(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake
26. There is little dispute that a person with the same skills, qualifications and experience as the applicant could work as sales assistant, hairdresser’s assistant or general clerk.
(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)
27. In order to apply this factor it is necessary to isolate and identify the physical or mental impairment which caused (or was one of the causes of) the applicant’s retirement: s 34(1B).
28. The respondent says Ms Cotton was retired because she was physically unable to do her job as a result of being placed on employment restrictions. Those restrictions became necessary because of the applicant’s coccyx injury, the respondent says. The respondent relies on the Final Medical Board report (at T51) in particular. The applicant says her prolapsed disc contributed to the pain and discomfort that necessitated the work restrictions, and must therefore be taken into account.
29. I have already found the prolapsed disc was not caused by the coccyx problems. It was most likely caused by the incident in the pit at the same time as the coccyx injury. Dr Power’s report is persuasive on this point. I am therefore satisfied the pain and discomfort caused by the prolapsed disc was occurring simultaneously with, and compounded, the pain and discomfort arising out of the coccyx injury. Although the decision-maker within the Department of Defence was not aware of the prolapsed disc as a cause of the incapacity, and mistakenly assumed the coccyx was the only cause of the problems, that is beside the point. The decision-maker did not decide to retire the applicant because of a medical condition, he or she decided to retire the applicant because of the consequent inability to do a job: see Cocks v Commissioner for Superannuation (1990) 21 ALD 297 at 305-306 per Davies J. If there was a partial diagnosis or a misdiagnosis of the medical condition that led to that state of affairs, the applicant is not prejudiced.
30. In the circumstances, I am satisfied the coccyx condition and the prolapsed disc were both present at the time of retirement and both contributed to the pain and discomfort that gave rise to the work restrictions which prevented the applicant from doing her job as a soldier. The question, then, is the extent to which the same impairment created an incapacity to do the work associated with the occupations in s 34(1A)(b).
31. Assessing incapacity is an inexact process, as Davies J explained in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433:
“Thus, the determination of a percentage of incapacity is not to be undertaken as if it were a 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), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment. ”
32. I had the opportunity to observe Ms Cotton in the witness box at the hearing. She was obviously in some discomfort, although I note she had stopped using any pain-relief medication in anticipation of a medical procedure that was scheduled for the days following the hearing. I also took careful account of the evidence contained in the medical reports, and the evidence about the trip to Dreamworld and Wet’n’Wild. The evidence that Ms Cotton went on rides at the theme parks is of great significance, given that it took place a few months after the reclassification.
33. The respondent says the applicant suffers from a 10% incapacity. I am not satisfied that it is that low, but I cannot be satisfied in all the circumstances that it is 30% or more. It follows that the applicant has been unsuccessful in her appeal against the decision of the respondent.
34. The Tribunal affirms the decision under review.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member
Signed: Sarah Oliver
AssociateDates of Hearing 2 and 3 September 2002 (at Maclean)
Date of Decision 2 May 2003Counsel for the Applicant Mr Jungwirth
Solicitor for the Applicant Allen Duggan Associates
Solicitor for the Respondent Mr Dubé, Australian Government Solicitor
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