Cowey and Defence Force Retirement and Death Benefits Authority
[2004] AATA 650
•24 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 650
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/645
GENERAL ADMINISTRATIVE DIVISION
Re: DOUGLAS BRUCE COWEY
Applicant
And: DEFENCE FORCE
RETIREMENT AND DEATH
BENEFITS AUTHORITY
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Associate Professor J.H. Maynard
Date: 24 June 2004
Place: Melbourne
Decision:The Tribunal affirms the decision under review
(sgd) B.H. Pascoe
Senior Member
DEFENCE FORCES RETIREMENT – percentage of incapacity for civil employment – discharge from army – subsequent civil employment – chronic arthralgia both wrists – no other clinical diagnosis of condition – employed nine years as food factory hand – incapacity less than 30 per cent
Defence Force Retirement and Death Benefits Act 1973 ss 30, 31, 34
REASONS FOR DECISION
24 June 2004 Mr B.H. Pascoe, Senior Member
Associate Professor J.H. Maynard
This is an application to review a decision of the respondent dated 13 August 2002 to reclassify the applicant's incapacity for civil employment, under s 34 of the Defence Force Retirement and Death Benefits Act 1973 (the Act), as a 20 per cent Class C, with effect from 20 September 2002. This decision was affirmed by the respondent on 23 May 2003.
At the hearing, the applicant, Mr D. Cowey, was represented by Mr A. Pillai, of counsel, and the respondent was represented by Mr B. Dubé, a solicitor with the Australian Government Solicitor. Evidence was given by Mr K. Brearley, a trauma surgeon; Mr T. Duthie Mills, a consultant orthopaedic surgeon; and Mr R. Collier, a team leader employed by Goodman Frelder Consumer Foods Ltd, trading as Uncle Tobys (Uncle Tobys). In addition to the documents provided by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:
Function Capacity Evaluation Report – Mr R. Wright, Injury
Management Consultant Exhibit A1
Vocational Assessment – Ms J. Jackson,
Rehabilitation Consultant Exhibit A2
Statement, Mr R. Collier dated 1 April 2004 Exhibit R1
Copy Employment Application Uncle Tobys dated 15 March 1995 Exhibit R2
Copy Medical Evaluation Uncle Tobys dated 23 March 1995 Exhibit R3
Mr Cowey was born on 13 January 1960 and was 44 years of age at the date of the hearing. After leaving school in 1976, he became an apprentice cook at a restaurant in Mildura. When the restaurant failed, he joined the Australian Army (the army) in April 1977. After his basic training, he completed a cook's training course at Puckapunyal. In subsequent years he was posted to Watsonia, Queenscliff, Sydney, Rockhampton, Puckapunyal and Albury‑Wodonga. Mr Cowey said that, until some time in 1986 or 1987, he maintained a high level of fitness. However, while he was posted to Albury‑Wodonga at the army apprentice mess, he first noticed soreness in his right hand. This steadily deteriorated until he was unable to grip. He sought medical help, was prescribed anti‑inflammatory medication and placed on light duties. He said that he began to experience problems in his left arm and spent some three to four weeks with both arms in plaster. He was sent to hospital at Ingleburn where a rheumatologist was unable to provide a clear diagnosis. He was transferred to duties in the Q Store but failed to pass a storemen's course which, he maintained, was the result of his inability to keep up with the others because of difficulty in writing. Mr Cowey was discharged from the army as medically unfit on 3 July 1989.
By determination of 17 April 1989, liability for compensation was accepted for tenosynovitis of the right wrist with the date of injury deemed to be 26 February 1986, being the date on which medical treatment was first obtained. On 25 January 1990 he was assessed, pursuant to s 30 of the Act, as having an impairment of chronic arthralgia both wrists and an incapacity in relation to civil employment as a cook of 40 per cent to be classified as Class B. On review, following a request by Mr Cowey, his percentage incapacity was increased to 60 per cent and his classification became Class A on 15 February 1991. On 5 November 1993, this classification was reduced to 30 per cent Class B. At that time, it was considered that the kinds of civil employment which a person with Mr Cowey's skills, qualifications and experience might reasonably undertake were a cook, a tourist officer and a driving instructor. This classification remained unchanged on reviews in November 1995, November 1977 and January 2000. The review of 13 August 2002 added factory hand (food) to the list of possible civil employment and reduced the incapacity to 20 per cent, resulting in a classification of Class C.
Section 30 of the Act provides:
30(1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him 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
…
(2) 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.
Under s 31 of the Act, a member classified as Class C is not entitled to the payment of an ongoing pension. Section 34 of the Act gives the Authority power, from time to time, to review a member's classification having regard to the same matters as set out in s 30(2).
After discharge, Mr Cowey worked for On‑Line Motor Cycles for 18 months. He said that he helped with spare parts, did filing and other clerical work. After this, he worked at Falls Creek driving a snow‑mobile. Mr Cowey said that he used two fingers only with his arms strapped. After the winter season, he returned to On‑Line Motor Cycles. He said that he was in regular contact with the Commonwealth Rehabilitation Service. He commenced work as a volunteer with the Tourist Information Centre on a part‑time basis. He enrolled in the course of study and obtained the Tourist Information Certificate of Attainment in 1992. Mr Cowey obtained also a Motor Cycle Instructor's licence but said that he had never worked as an instructor. After several part‑time and casual positions, Mr Cowey obtained full‑time work with Uncle Tobys as a food operator/process worker in 1995. He remains working in that position.
Mr Cowey maintained that he has difficulty in performing the work at Uncle Tobys because of the pain in his hands and arms, but is determined not to complain and to continue working. He acknowledged that the work involves some lifting of bags containing ingredients which can weigh up to 25kgs. He said that he works with others who are aware of his problem and provide assistance. Mr Cowey acknowledged that he had not told Uncle Tobys, at the time of his employment, of his problems with his hands and arms, nor of his having been discharged from the army as medically unfit. He said that he did not believe that he would have obtained the job if he had not lied about his condition. He said that he is involved in Occupational Health and Safety at Uncle Tobys, as he would not like to see others developing problems similar to his own.
Mr Collier described the work done at Uncle Tobys by Mr Cowey as a Level 3 Process Worker. For six years, he was Mr Cowey's direct supervisor but, for the past six months, has not been directly involved with him. Mr Collier said that, until shortly before the hearing, he was not aware that Mr Cowey had any injury or problem with his hands. He said that Mr Cowey works the full standard 40‑hour week with occasional overtime and performs the same duties as every other Level 3 Process Worker who works on the same processing lines.
On 19 November 2002 Mr Brearley examined Mr Cowey and provided a written report on the same day (T82). In his examination, Mr Brearley was unable to find any clinical abnormality in Mr Cowey's hands, arms, shoulders or neck. He noted in his report that:
…
It appears that despite being seen by a large number of Doctors of varying specialities, no specific diagnosis has been made to explain his symptoms.
The condition has been given the label of chronic arthralgia of both wrists. This is a description of a symptom and not a diagnosis.
Some of his symptoms are suggestive of tenosynovitis and this diagnosis along with overuse syndrome and chronic pain syndrome appear to be as close to a diagnosis as is possible given the information available.
Mr Brearley considered that Mr Cowey "has a significant disability in that he is unable to do work involving heavy and repetitive use of the arms". In his report, he assessed Mr Cowey as having a 50 per cent incapacity as a cook, 30 per cent as a tourist information officer and 40 per cent as a food factory hand. In his oral evidence, having read the statement of Mr Collier, Mr Brearley accepted that, if Mr Cowey was performing the normally expected tasks for his position, the assessment of 40 per cent may not be correct. He maintained his assessment of 50 per cent as a cook on the basis of the work he was doing in that capacity in the army. Mr Brearley noted that, while there was a positive rheumatoid factor noted in 1988, he was not suspicious of a rheumatoid condition.
On 14 June 2002 Mr Duthie Mills examined Mr Cowey and provided a report dated 18 June 2002 (T48). In that report, he stated:
…
Mr Douglas Cowey is a 44 year‑old man who presents with a cascade of symptoms in respect of his hands, arms and neck in association with headaches.
He reported a weakness of grip in both hands with a sensation of tightness and fullness, pain in both shoulders and weakness of his arms.
Clinical examination demonstrated no convincing clinical abnormality.
In my opinion, the basis of Mr Cowey's complaints is uncertain and certainly his complaints appear to exceed any objective clinical findings on examination.
I note that the impairment accepted is "Chronic Arthralgia Both Wrists". It is beyond my area of expertise as an orthopaedic surgeon to comment in detail with regard to the possible aetiology of Mr Cowey's symptoms, although it is conceivable his complaints are on a basis of a functional somatic syndrome.
Mr Duthie Mills assessed the level of incapacity of Mr Cowey at 10 per cent to less than 30 per cent in each form of employment as a cook, a tourist officer, a driving instructor and a food factory hand. He said that this assessment was based on the job description of each occupation on the Australian Standard Classification of Occupation. Mr Duthie Mills had seen the statement of Mr Collier which, he believed, supported his view of Mr Cowey's incapacity being small. He was unable to detect any signs of rheumatoid arthritis in his examination.
Mr Cowey was examined by many medical practitioners prior to and after his discharge from the army. None could attribute any specific organic reason for the pain in his wrists or arms. The medical practitioners' comments were:
Dr C.K. Medley, physician, said, in a report of 16 August 1988, "…I basically can't find any physical abnormality".
Dr J.L. Mason, psychiatrist, said in a report of 29 September 1988, "…he would seem to be suffering quite genuinely from a form of polymyalgia".
Dr Medley said in a report of 19 December 1988, "…I think the diagnosis is still not clear. Even though his rheumatoid factor is positive I don't think that definitely means that he has got it".
Mr W. Huntsdale, orthopaedic surgeon, said in a report of 26 October 1989, "…this fellows [sic] symptoms far outweigh any physical signs which one can demonstrate…and one would have to say it is some sort of overuse syndrome or chronic pain syndrome".
Dr R. Jeremy, rheumatologist, said in his report of 18 October 1990, "…I could not detect any objective abnormality in joints, tendons or muscles, and I would regard the symptoms as…non‑specific".
Mr H.R. Bartram, orthopaedic surgeon, stated on 17 September 1991, "…I cannot diagnose the condition…In my opinion he is not suffering from a clear medical condition".
Dr T. Shanahan, physician, said on 7 July 1993, "…I cannot ascribe a specific organic diagnosis to explain his symptoms.
The comments of these medical practitioners accord with the statement by Mr Brearley that "no specific diagnosis has been made". The impairment recorded as the cause of Mr Cowey's incapacity by the respondent was "chronic arthralgia both wrists". Black's Medical Dictionary 40th Ed. defines arthralgia as "pain in the joint in which there is no swelling or other indications of arthritis".
The inability of any medical practitioner, who has examined Mr Cowey, to arrive at a clinical diagnosis of his condition makes the assessment of his incapacity in relation to employment particularly difficult. The limitations described by him are the result of reported pain which is a subjective incapacity with difficulty of objective measurement.
Mr Brearley originally assessed Mr Cowey as having a 50 per cent incapacity as a cook compared with less than 30 per cent by Mr Duthie Mills. However, the assessment by Mr Brearley was based on the work done by Mr Cowey in the army. The evidence of Mr Cowey was that, at the time he first noticed pain in his right hand, he was one of 8 cooks working in the army apprentice mess providing meals for between 700 and 1000 people. This involved the handling of very large and heavy food trays, large and heavy implements and long hours. It may well be appropriate to assess a higher than 30 per cent incapacity for that type of work. However, the skills obtained in that work would allow Mr Cowey to work as a cook in a much smaller environment involving preparing meals for a smaller number of people, utilising significantly lighter weight food containers and implements. In such cases, we are of the view, based on the evidence, that the incapacity would be considerably less and is most likely to be less than 30 per cent as assessed by Mr Duthie Mills.
In his initial report, Mr Brearley assessed the incapacity of Mr Cowey as being 40 per cent as a food factory hand. In his oral evidence and having seen the statement provided by Mr Collier, Mr Brearley acknowledged that this assessment may not be correct. On both the evidence of Mr Cowey and Mr Collier, we are satisfied that Mr Cowey is able to perform the normally expected duties in that role with a very limited degree of incapacity. It is accepted that he may well have pain in his hands and arms as a result of the work, but he has been performing the duties without any knowledge of his supervisors of any difficulty for 9 years. While we accept his evidence of the reasons for not disclosing his condition and reason for discharge from the army at the time of obtaining employment with Uncle Tobys and recognise his stoicism and determination to maintain himself in employment, we cannot accept that he could maintain that employment for 9 years to the full satisfaction of his supervisors with a greater than 30 per cent incapacity. It follows that we find that he has a less than 30 per cent incapacity for employment as a food factory hand.
The other kinds of civil employment for which Mr Cowey is qualified by his skills and qualifications are tourist officer and driving instructor. In both occupations, we are satisfied that very limited manual work involving use of hands and arms is required and, based on the evidence of Mr Cowey, would assess his incapacity for those occupations as less than 20 per cent.
It follows from the foregoing that the percentage of incapacity of Mr Cowey in relation to civil employment, which a person with his skills, qualifications and experience might reasonably undertake, is less than 30 per cent.
The decision under review should be affirmed.
I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Associate Professor J.H. Maynard, Member
sgd: Catherine Thomas
Clerk
Date of Hearing: 5 April 2004
Date of Decision: 24 June 2004
Counsel for applicant: Mr A. Pillai
Solicitors for the applicant: Messrs Nevin Lenne & GrossSolicitor for the respondent: Mr B. Dubé, Australian Government Solicitor
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