Forbes and Defence Force Retirement and Death Benefits Authority
[2004] AATA 31
•16 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 31
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/1373
GENERAL ADMINISTRATIVE DIVISION ) Re GREGORY VINCENT FORBES Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Associate Professor J.H. Maynard, MemberDate16 January 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review. In substitution the Tribunal decides, in accordance with s 34 of the Defence Force Retirement and Death Benefits Act 1973, that from 14 June 2002:
(i) Mr Forbes’ percentage of incapacity in relation to civil employment was 60 percent; and
(ii) His classification in respect of incapacity remained Class A.
(Sgd) Joan Dwyer
Senior Member
Defence Force Benefits – reclassification in respect of percentage of incapacity – classification reduced from Class A to Class B – determination of percentage of incapacity to have regard to three specified matters only – no issue as to kinds of civil employment recipient might reasonably undertake but question as to degree to which prescribed impairment diminished capacity to undertake relevant kinds of civil employment – applicant employed for 16 years as a Clerk – finding that applicant had no capacity for work as a Trades Assistant (Aircraft Maintenance) – unusual to find large incapacity for work currently undertaken – finding of 55% incapacity as a Clerk – finding of 60% incapacity for civil employment – greater weight given to capacity for work as a Clerk – appropriate to take incapacity as Trades Assistant into account – decision under review set aside – decision made in substitution that incapacity for civil employment is 60% and that classification remains Class A.
Defence Force Retirement and Death Benefits Act 1973 (Cth) s 30(1), 34(1), (1A) and (1B).
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286.
Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156.
Re Thomson v Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424.
REASONS FOR DECISION
16 January 2004 Mrs Joan Dwyer, Senior Member
Associate Professor J.H. Maynard, Member1. This is an application under the Defence Force Retirement and Death Benefits Act 1973 (“the Act”) for review of a decision of the Defence Force Retirement and Death Benefits Authority (“DFRDBA”) made on 26 November 2002. That decision confirmed a decision made 7 May 2002 (T84 pp219-223), in which the DFDRBA, under s 34 of the Act, decided to reclassify Mr Forbes from Class A to Class B, as set out in s 30 of the Act, with effect from 14 June 2002.
2. Mr Triggar of Counsel appeared for Mr Forbes. Mr Dubé, Principal Solicitor with the Australian Government Solicitor, appeared for the DFRDBA. Evidence was given by the applicant, Mr Forbes, and by his supervisor at work Mr Hawken. Evidence for Mr Forbes was also given by his treating general practitioner Dr Davies, who gave evidence over the telephone. The respondent called Dr Craven, a neurologist, who also gave telephone evidence. At the hearing the Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) together with exhibits tendered during the hearing.
BACKGROUND FACTS
3. Mr Forbes joined the Royal Australian Navy (“RAN”) on 13 June 1973 at age 17. He was seriously injured in a motor bicycle accident on 29 September 1974. His injuries led to him being discharged on 23 December 1975, on the ground that he was medically unfit for service.
4. Mr Forbes’ injuries included severe head injury resulting in brain damage, fractured jaw and fractured right scaphoid. He was in hospital from 29 September 1974 until shortly before his discharge from the RAN. The DFRDBA, in its reasons for the decision of 26 November 2002 decided that Mr Forbes’ prescribed impairment should be described as follows (T99 p413):
“Severe Head Injury and Left Sided Partial Hemiparesis, Osteoporosis, Vertebral Fractures, Osteoarthritis in Right Wrist and Post Traumatic Epilepsy”.
5. Shortly after discharge, Mr Forbes was classified Class A by the DFRDBA, which entitled him to invalidity pay at the highest rate provided for in s 31(2) of the Act. That rate applies where a person’s degree of incapacity in relation to civil employment is 60% or more.
6. In spite of his severe injuries, after intensive rehabilitation and some years of unsatisfactory work trials, Mr Forbes managed to find and hold employment in the Commonwealth Public Service. He has been employed by the Department of Defence since 3 May 1986.
7. Prior to 1980 Mr Forbes had only intermittent part-time casual work. From 1980 to 1985 he worked for approximately six months in total. On 15 November 1985 he joined the Commonwealth Public Service as a Clerical Assistant with the Commonwealth Employment Service. He seems to have been employed on a trial or probationary basis. He was not kept on there after 14 February 1986.
8. Mr Forbes started work as a Clerical Assistant with the Department of Defence on 3 May 1986, and has remained employed by the Department of Defence since then. His position description changed to Assistant Technical Cataloguer and then to Technical Cataloguer.
9. At various reviews over the years, the DFRDBA reduced Mr Forbes’ percentage of incapacity from 80% to 70% in 1987, and to 60% in 1990, but he remained classified Class A because of the operation of s 30(1) of the Act. It provides as follows:
Classification in respect of incapacity
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% BLess than 30% C
10. After further employment information and medical reports were obtained in 1999, 2001 and 2002, Mr Forbes was, for the first time, reclassified so that, with effect from 14 June 2002, his rate of invalidity pay was reduced to a Class B level. At that time his percentage of incapacity in relation to civil employment was determined to have reduced from 60%, the lowest level attracting a Class A classification, to 45%, which is within the Class B range.
THE RELEVANT LEGISLATIVE PROVISIONS
11. Section 34(1), (1A) and (1B) of the Act provide as follows:
Reclassification in respect of incapacity
34. (1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.
(1A) In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a recipient member; ….
the Authority shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience
of the recipient member;
(b)the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(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);
(d)such other matters (if any) as are prescribed for the purposes of this subsection.
(1B) In subsection (1A), “prescribed physical or mental impairment”, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:
(a)a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b)any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).
THE ISSUES
12. The issue before the Tribunal is the determination of Mr Forbes’ degree of incapacity for civil employment, as at the date of effect of reclassification, namely 14 June 2002. As the Full Federal Court emphasised in Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 at 291 and Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156 at 160, only the matters set out in s 34(1A) of the Act may be taken into account in determining the percentage of incapacity. Davies J explained how to go about the task facing the Tribunal, in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424. He said, at 433:
If, for example, it has been found that the range of employment opportunity has been restricted as a result of the prescribed physical or mental impairment by, say, 40 per cent, that percentage is not necessarily to be taken as the percentage of incapacity in relation to civil employment. Such a course of reasoning would not be well based in experience. Most employees hold one job at a time and many, particularly skilled tradesmen and professional persons, undertake one type of work throughout the whole of their working life, notwithstanding that they may have a capacity and even a qualification to undertake some other employment. The width of the range in employment opportunity is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but it may preclude the person from working more than part-time or intermittently. 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. In making the determination, the concept of incapacity for work as enunciated in Arnotts Snack Products Pty Ltd v Yacob [(1985) 155 CLR 71], Steele v Defence Forces Retirement Benefits Board (No 2) [(1956) 94 CLR 91] and Re Bos and Defence Forces Retirement and Death Benefits Authority [(1977) 1 ALD 31] should be kept in mind.
13. The DFDRBA, in making its decision as to the degree of incapacity, determined, as set out in the Minute of 7 May 2002 (T99, p385, paragraph 9):
(a)the kinds of civil employment which a person of the applicant’s skills, qualifications and experience might reasonably undertake were Trades Assistant (Aircraft Maintenance) and Clerk;
(b)‘Severe Head Injury and Left Sided Partial Hemiparesis, Radiocarpal Osteoarthritis in Right Wrist and Post Traumatic Epilepsy’ constituted the applicant’s prescribed physical or mental impairment; and
(c)the impairment referred to at (b) above diminished his capacity to undertake civil employment as a Trades Assistant (Aircraft Maintenance) to a Moderate degree and Clerk to a Small degree, resulting in an overall Moderate degree of diminution.
14. On reconsideration, the DFRDBA, on 26 November 2002 varied the assessment of incapacity to “moderate for general clerk and large for trades assistance (aircraft maintenance)”, but concluded that overall Mr Forbes’ incapacity caused by his prescribed impairment was “moderate at 45%”.
15. There is no dispute about the DFRDBA’s findings under paragraphs (a) and (b) of s 34(1A) of the Act. As set out in paragraph 11 of these reasons, those paragraphs relate to Mr Forbes’ vocational, trade and professional skills, qualifications and experience, and to the kinds of civil employment which a person with those skills, qualifications and experience might reasonably undertake. Nor is there any dispute about the DFRDBA’s description of the relevant prescribed impairments in accordance with s 34(1B) of the Act. The sole issue is the degree to which prescribed impairments have diminished Mr Forbes’ capacity to undertake the identified kinds of civil employment.
16. During the hearing Mr Dubé conceded that on the evidence the Tribunal would have to conclude that Mr Forbes’ incapacity for civil employment as a Trades Assistant (Aircraft Maintenance) was either 100% or very large. He submitted that the Tribunal should give greater weight to the question of Mr Forbes’ incapacity for work as a general clerk. We consider that the concession as to Mr Forbes’ capacity as a Trades Assistant (Aircraft Maintenance) was appropriate. We also agree that it is appropriate to give greater weight to evidence as to Mr Forbes’ capacity for employment as a clerk, which is the employment he presently has, than to the issue of his capacity for work as a Trades Assistant. That is consistent with the comments of Davies J in Re Thomson, as quoted in paragraph 12 of these reasons. However, the issue of reduction of the range of civil employment is relevant, and must be taken into account by the Tribunal.
FINDING AS TO CAPACITY FOR EMPLOYMENT AS A TRADES ASSISTANT
17. We find on the basis of the medical reports before the Tribunal that Mr Forbes’ incapacity for employment as a Trades Assistant (Aircraft Maintenance) is 100%. We rely in particular on the reports and evidence of Dr Davies and on the report of Ms Meade, a neuropsychologist. We also rely on the reports and evidence of Dr Craven, particularly his report of 12 March 2002 (T82), where he wrote, at paragraph 2, p212:
With regard to working as a trades assistant, this was previously assessed as being “large”, however on further consideration I doubt Mr Forbes is capable, safely, of any of the tasks as described. I would therefore re-assess his capacities as follows:
Trades assistant (Aircraft maintenance): Total (100%)
18. Ms Meade’s report (A3) set out the results of cognitive testing on 31 March 2003. Ms Meade reported that Mr Forbes’ non-verbal abilities were Low Average to Average with a Low Average performance on a visuoconstructional task. She referred to co-ordination problems affecting that result. She wrote (A3 p2):
He performed poorly on processing speed tasks (Borderline range), including those less dependent on dexterity, suggesting a problem with slowed mental processing.
Greg’s attention and working memory abilities were Borderline to Average. Immediate memory span for numbers was average, but his spatial memory span was very poor, scoring at the 5th percentile. Memory and new learning abilities ranged from Extremely Low to Average. Verbal memory was Low Average to Average, while visual memory was Extremely Low to Borderline. Of particular note, his recall of family picture scenes was impoverished, scoring below the 1st percentile. The difference in verbal and nonverbal memory approached significant (base rate 5.8%). There is no difference between immediate or delayed memory. Recognition memory was Borderline to Average, indicating his recall did not benefit significantly from prompts and cues. General memory and attentional abilities, and in particular nonverbal or spatial memory, was poorer than his full scale IQ.
In paragraph 2 of her summary and opinion Ms Meade wrote:
On neuropsychological assessment, Greg’s presentation was one consistent with significant head injury, in particular his disinhibited manner and a tendency towards inappropriate and impulsive behaviour. Results of testing revealed a profile of poorer nonverbal abilities, and in particular poorer nonverbal memory, as well as poorer attention, reduced mental speed and naming problems. Both his clinical presentation and neuropsychological profile are consistent with a severe traumatic brain injury.
19. Our lay observations of Mr Forbes as he gave evidence confirmed that he had poor attention, reduced mental speed and naming problems.
20. We have referred to the list of tasks set out as appropriate for a Trades Assistant (Aircraft Maintenance) by the DFRDBA at T91, p384, paragraph 8. We find that Mr Forbes, by reason of his prescribed physical and mental impairment, has no capacity for work as a Trades Assistant (Aircraft Maintenance). We find he has a 100% diminution of his capacity to undertake that form of civil employment.
FINDING AS TO CAPACITY FOR EMPLOYMENT AS A GENERAL CLERK
21. In considering the degree to which Mr Forbes’ prescribed physical and mental impairments have diminished his capacity to undertake civil employment as a general clerk, we will refer to three matters. First, we will explain the way in which this issue of reclassification arose, then we will set out some of the evidence which was before the DFRDBA. Finally, we will refer to the relevant evidence before us at the hearing, before making our finding based on that evidence.
(i) How the issue of reclassification arose
22. It is not surprising that the DFRDBA, in its review of May 2002, questioned whether Mr Forbes should still be classified Class A. He had been employed by the Department of Defence in a full-time capacity for over 15 years and appeared to have obtained some promotion in that time.
23. In 1991, after Mr Forbes had been in his current employment with the Department of Defence for five years, a report was obtained from Dr Ebeling, the Head of the Neurology Unit at the Royal Melbourne Hospital, as to the effects of the severe head injury sustained by Mr Forbes in September 1974.. Dr Ebeling, after interviewing and examining Mr Forbes on 10 September 1991, made the following observations and comments (T56 pp106-8):
In connection with the effects of the head injury, he continues to display a residual left hemiparesis and overall clumsiness with a hemiparetic gait and a moderately severe restriction for digital skills in the less spastic left hand. His speech is slurred and at times difficult to freely comprehend whilst he further displays a word finding problem.
Short term memory has been adversely affected in connection with which he keeps “reminders” a diary and sundry notes. He is prone to “tense up” when needing to concentrate and I further understand that he is slow in understanding and comprehending – he took three attempts to pass the training course in connection with his present posting namely that as a technical officer grade 1 in connection with cataloguing new items in the Defence Forces.
He continues to experience various social problems – he lacks self esteem, loses confidence in the work place when he makes mistakes – many of his fellow workers become resentful and overly impatient as regards his below average performance.
. . .
Latterly (last few years) he has been further prone to experience spinal discomfort which he attributes to a fracture of the pelvis – the presence of which was said to be discovered quite some time subsequent to the bike accident.
He continues to reside with his mother travelling to South Melbourne on a daily basis and feels exhausted by the time he reaches home. Even during the working day he tends to fatigue to excess whilst he is clearly prone to moderate anxiety tension symptoms.
The findings are those of a residual hemiparesis, slurred speech with word finding difficulty whilst the visual fields are grossly intact.
His gait is clearly hemiparetic with a tendency for inversion and plantar flexion of the left foot on walking.
The spasticity is greater in the leg compared with the left arm although as mentioned previously he clearly lacks digital skills in the paretic left hand.
There has been no change in this man’s basic condition nor capabilities during the last 12 months – his neurological condition is stable and there have been no overt epileptic seizures.
. . .
Dr Ebeling concluded:
I take note of Dr Hjorth’s report of early 1990 and would agree that Forbes is to be commended in terms of his attitude to ongoing employment, though I would have little doubt that he would fail to satisfy the demands of private enterprise.
In particular I see no reason to alter his current assessment of impairment to the order of 60%. In view of the length [of] time which has now elapsed since the MBA, there is no prospect of improvement in this regard and indeed should there be a decline in the psychological circumstances, the overall level of impairment could increase rather than decrease.
24. Mr Forbes’ classification remained Class A after review in October 1991. In 1995 it was decided that no further medical review was necessary at that time. The comment was made (T60 p114):
Maintain regular reviews to keep an eye on earnings though. A much greater income than Mr Forbes presently receives would certainly warrant reconsideration by the Committee. (Emphasis added).
25. In 1997 it was again decided that no review of invalidity classification would be undertaken. At that stage Mr Forbes’ earnings were advised to be at the retention point for his classification of Technical Officer Level 1.
26. However, in about 1999, Mr Forbes completed a form described as a “Personal Statement by Retired Member”. He advised that he had earned $58,394.06, “excluding overtime and pension payments” over the last 12 months (T66 p121). In view of the fact that he set out his gross weekly wage as $625.84, which would represent an annual salary of $32,543.68, that would clearly seem to have been an error. The error is confirmed by a subsequent Minute from the Department of Defence Recruitment Officer dated 24 October 2001 stating that Mr Forbes had been promoted to Technical Officer 2 to take effect from November 2001 with an annual salary of $36,500 (T76 p200). It seems probable that Mr Forbes had overlooked the instruction to provide his earnings “excluding overtime and pension payments”.. Unfortunately, the erroneously inflated salary estimate was accepted without question, and was reflected in a DFRDBA employment summary in October 2001 (T74 p155).
27. It seems that, as was foreshadowed in the comment quoted in paragraph 24 of these reasons, the apparent increase in salary was a factor leading to the decision to review Mr Forbes’ classification. A DFRDBA delegate on 5 June 1999 (T67 p124), requested a specialist review summarising the situation as follows:
FT employment as APS since 1986 with a steady promotional profile which tends to be at some odds with the member’s statements re restrictions. He may well be large for the T. Asst. [Trades Assistant] but has to be small or min. [minimal] for Clerk.
(ii) Evidence before the DFRDBA
28. Specialist review reports were obtained from Mr Hopkins, an orthopaedic surgeon, and from Dr Craven, a neurologist.
29. Mr Hopkins, in his report of 20 August 1999 (T71 pp135-143), concluded that Mr Forbes had significant incapacity related to both physical and mental functions. As to employment as a clerk Mr Hopkins wrote (T71 p142):
With regard to occupation as a clerk, this is quite within his capabilities and is the type of work in which he is currently involved. He may experience some difficulty with regard to mentation from his head injury but this is not a matter for an orthopaedic report, however as far as his physical capabilities are concerned, prolonged writing and prolonged keyboarding may become a problem with the arthritis of his right wrist. Overall I consider his incapacity with regard to employment as a clerk is minimal.
As far as an overall assessment is concerned, in my opinion Mr Forbes’ overall incapacity is moderate.
30. Mr Hopkins also stated that Mr Forbes would not improve with time, but that his right wrist osteoarthritis would deteriorate in time, with increasing pain and discomfort.
31. Dr Craven, in his report of 23 August 1999 (T72 pp144-150), set out a history of poor memory and concentration, forgetting work procedures and making errors in his database at work. He wrote that Mr Forbes’ incapacity for clerical work was at the lower end of the 30% or more but less than 60% range. He added that he did not doubt that “the slowness of comprehension and inability to retain information makes him an inefficient and perhaps frustrating employee” (T72 p149). Dr Craven assessed Mr Forbes’ overall impairment for employment, “assuming an equal weighting for each type of employment” as large.
32. Dr Craven provided an updated report on 12 March 2002 (T82 pp208-214). As set out in paragraph 17 of these reasons, Dr Craven, in that report, amended his opinion to state that Mr Forbes was totally incapacitated for work as a Trades Assistant (Aircraft Maintenance). Dr Craven made no change in his assessment of incapacity for employment as a clerk.
33. The Minutes of the Meeting of the Committee which made the decision of 7 May 2002 to reclassify Mr Forbes to 45% Class B, stated, as to the occupation of Clerk (T83 p217):
With regard to Clerk, the Committee noted that the duties of a Clerk include operating business machines and telephone equipment; sorting, classifying and filing information; sorting, opening and sending mail; recording financial and other information and preparing documents; preparing routine reports; and receiving letters and phone messages and entering text on keyboards. The Committee noted that Mr Forbes has been employed in a full time capacity as a Clerk since November 1985 and that this could now be considered his primary type of employment. The Committee noted Mr Forbes’ statement “…Still at the same job as a Technical Officer Grade (1). However I have just been promoted to the position of Technical Officer (2)”.. The Committee considered that Mr Forbes would have little restriction in performing the duties of Clerk and agreed that the degree of incapacity in relation to Clerk is Small. The Committee noted that Dr Craven had provided a Moderate assessment but that this appeared to [be] overstated.
(iii) Evidence at the hearing
34. The evidence at the hearing was confusing because the material before the Tribunal contained contradictory assessments of Mr Forbes’ performance by the one person. His supervisor at the Department of Defence for the last five years has been Mr Hawken. He and Mr Forbes work together as a small unit performing a particular set of tasks. Mr Hawken provided a report dated 5 August 2002 as to Mr Forbes’ “Acquired Impairment and Employability” (T92 pp263-4). He wrote:
I have been Greg Forbes’ immediate supervisor for the past four and a half years, and although he is a very conscientious and dedicated employee, he requires constant and close supervision in the performance of his duties due to his medical condition.
Greg has memory retention problems, which manifest in his needing to write notes to himself to remind him of ‘what to do next’ in his day to day tasks and to regularly refer to written procedures and ask for my (supervisor’s) guidance and help when undertaking daily routine procedures. Greg can tend to ask the same questions re work procedures at two or three week intervals.
Greg has done a number of ‘Introduction to Microsoft Word’ courses but these courses are delivered at a rate where Greg cannot absorb or retain the information as readily as the ‘typical’ student is. Therefore he has had to repeat the course a number of times. He also had to repeat the introduction course to the Defence Codification System as he failed it the first time due to memory retention problems. He passed the course on the second attempt which is an essential course to do for the position he holds now.
As his immediate supervisor I have to take into account Greg’s impairment and regulate his workload to enable him to cope, as he has difficulty coping with varied tasks running at the same time and high volume workloads.
Because Greg is epileptic prone I believe the quantity and variation of tasks presented to him needs to be moderated; therefore I control the quantity and diversity of his workload.
Greg performs his duties to the best of his ability, but I need to adjust how I delegate work to him. His impairment does affect his performance but the Department’s Equity and Diversity policy fosters his employability on a satisfactory basis.
35. That report seemed to us to be quite consistent with Mr Forbes’ manner and demeanour while giving evidence. He was obviously anxious and that caused him to become confused when answering questions, even about something as basic to his employment as the procedures he uses to perform his most usual daily task. He answered questions very slowly and sometimes only after a significant pause. If he was interrupted at all, he easily lost his train of thought. Sometimes it seemed that he had to hear something a number of times before it would sink in.
36. Mr Forbes’ evidence and Mr Hawken’s Minute of 5 August 2002 (T92 p263) were quite consistent. However, the documents from Mr Forbes’ employment file tendered by the DFRDBA (R2) created a different picture. They included positive referees’ reports dating back to November 1986. Of most significance are the documents R2 (h) and (k), which are referee reports by Mr Hawken. They are far more positive as to Mr Forbes’ skills and performance than the report of 5 August 2002 (T92).
37. The document R2(h) was a reference from Mr Hawken for a different position. He said as to Mr Forbes’ ability to work effectively in an integrated team environment:
Greg is very cooperative and an excellent team contributor in his current position. He works conscientiously to deliver customer satisfaction in our team environment. Once Greg is given a task he can be relied on to work diligently unsupervised to the completion of the task. He has worked in an integrated Service-civilian environment successfully for many years.
Mr Hawken also set out the various databases Mr Forbes used and described him as “adept at using this electronic media”.
38. It is relevant that, in spite of that reference, the Selection Committee assessed Mr Forbes as having unsatisfactory communication skills both orally and in writing (R2(i)). Mr Forbes was also assessed as unsatisfactory in relation to Selection Criterion 4. The Committee reported:
5. Selection Criteria 4. An understanding of and commitment to Equity Principles, Occupational Health and Safety, Industrial Democracy principles and Quality Management Systems.
Although Mr Forbes was able to relate some information in regards to this criterion, he wasn’t fully able to describe the three main contemporary management practices, particularly in regards to Occupational Health and Safety and the Equity principles. After some prompting Mr Forbes answered the questions related to this criterion, but didn’t demonstrate an understanding of or commitment to Quality Management Systems. He didn’t seem to be prepared to answer the questions posed to him.
The Selection Committee concluded (No. 7 of R2(i)):
Interview Panel Conclusion
7. Mr. Forbes was assessed as unsuitable for both positions and it was felt that even with training and significant workplace support, he could not fulfil the duties expected of him. His referee’s report suggested that Mr. Forbes had a higher understanding of the criteria but this was not the case at the interview.
39. Document R2(k) was a work performance report by Mr Hawken dated 21 January 1999. As is apparent from the comments at the end of that report, Mr Forbes was at that time on a three month trial period for a position. He and Mr Hawken said it was a restructured position equivalent to his former position. Mr Hawken noted Mr Forbes’ attendance as excellent, and ticked the “Very Good” box for “Quality of Work”, “Work output”, “Application”, “Drive and energy”, “Relations with clients”, and “Expression, Written and Oral”. Under “Other Comments”, he wrote (R2(k)):
Greg Forbes has a very good attitude to his work and applies himself very well to his tasks.
40. It was only when Mr Hawken gave evidence at the hearing, that the apparent inconsistency between the Minute of 5 August 2002 and the comments in the referee reports was explained. Mr Hawken, at his request, gave his evidence while Mr Forbes was out of the hearing room. He explained that his Minute gave a more accurate impression of Mr Forbes’ capacity for work as a clerk than did the referee reports. He said that he wrote the referee report R2(h) “with a positive spin” and that he did not look at the negative things. He said that some of the things he had written, such as that Mr Forbes could work unsupervised were “not quite right”. In cross-examination, Mr Hawken agreed that there was some exaggeration in the reference R2(k), but he did not agree that there was exaggeration of Mr Forbes’ problems in the Minute of 5 August 2002. He said that was “realistic”. Mr Hawken explained that it was his view that the Department of Defence’s Equity and Diversity policy involved using tolerance and patience with people with disabilities. He said that he made allowances for Mr Forbes in his performance of his tasks.
41. Mr Hawken described Mr Forbes’ problems with his memory and said that Mr Forbes forgets things each day. He said that he requires constant supervision and demonstrates short term memory problems. He also forgets fundamentals, which he should know to perform the tasks specific to his position. Mr Hawken said that he observes Mr Forbes a lot. If he reminds Mr Forbes of things, he can perform to a satisfactory level, although he is slow due to his memory and retention problems. If he leaves Mr Forbes to work things out himself, it takes a long time. He said that Mr Forbes refers to Manuals where someone without his impairment would retain the knowledge.
42. Mr Hawken said that sometimes Mr Forbes will ask him the same question up to five times a day. He acknowledged that he does get frustrated when Mr Forbes frequently asks the same question. Sometimes Mr Forbes will ask others for help. Mr Hawken confirmed evidence Mr Forbes had given, to the effect that he could not keep up with courses and had had to repeat some training courses a number of times. Mr Hawken also described how Mr Forbes gets flustered or confused if he is given more than one task at a time. Another problem mentioned by Mr Hawken, was that sometimes Mr Forbes can not recognise where the cursor is on his computer screen, or can not find a crucial line of print.
43. Mr Hawken also described how he has to check Mr Forbes’ work for errors, such as omitting basic information on the job register. Mr Hawken said that Mr Forbes struggles to perform his tasks and that he needs constant help to do so. He said he does not perform to the same level as other employees at his level, but that, with constant supervision and guidance, he can perform to a satisfactory level.
44. Mr Hawken also gave evidence as to Mr Forbes’ difficulty due to his physical impairments. He referred to Mr Forbes’ slow walking speed and said he lets him go to lunch early. He said he also allows him to go for a walk in the afternoon because of his osteoporosis, and to give him a break from the computer screen and “perhaps clarify his mind somewhat”.
45. Mr Hawken stated that if Mr Forbes had not been confirmed in his position at the end of the work trial in January 1999, he would have become “in excess”.
46. We accept Mr Hawken’s evidence and find that his Minute of 5 August 2002 is more realistic than the two referee reports. We find that he did exaggerate the positive and omit the negative in the referee reports. We find that he did this as he believed that the Equity and Diversity policy allowed him to do so, in order to assist Mr Forbes to hold his employment, in spite of a restructure which had abolished his former position.
47. Mr Forbes wrote an undated letter of appeal against the reclassification. That letter included the following passage (T90 pp253-4):
I now have a “short term” memory loss, which frustrates and hinders me in my day to day routines including my work I now do as a Technical Officer for the Department of Defence.
I only got this job with Government, because they gave me extra time to do the “Aptitude Test”.. This was because my right writing hand which was broken in the accident and immobilized in plaster for 11 months, now has osteoarthritis and limited dexterity. The job I am doing now, I only got it because I had to do the course twice, I failed the first time, so you see I am only holding on to this position, because of the Government’s E.E.O. and H.R.M. programmes. I have to regularly ask my supervisor how to do procedures and routines, as I tend to forget those on a regular basis. I do write down memory jotters and I have a “Cheat-Sheet” folder, but procedures are being updated regularly, so my notes are regularly out of date. This is my mental state of ability to do my work. This I have tried to explain to you the other side of my “Brain Damage” from the accident.
48. Mr Forbes also referred to his vision problems, which were first noted at the time of discharge (T3 p16), and to his physical problems in performing the tasks of a clerk. Those physical problems result from the crushed vertebrae, a fractured pelvis, osteoporosis, paralysis of the left hand and a broken right wrist. He also wrote that his epileptic seizures were brought on by stress and so he had to avoid stress as much as possible. We have taken into account the analysis of Mr Forbes’ employment difficulties due to his physical impairment contained in a Workstation Assessment (A4).
49. Dr Craven, in his evidence at the hearing, said that there appeared to be an inconsistency between his assessment of Mr Forbes’ capacity for work as a clerk, and Mr Forbes’ employment record of full-time work with the one employer, since 1986, and a promotion in November 2001 to Technical Officer Class 2. The reconciliation of those two apparently conflicting aspects of the evidence was a central factual question for the Tribunal.
50. We arranged to have the Minute of 5 August 2002 (T92) faxed to Dr Craven while he was giving evidence. After considering that Minute, Dr Craven said that it was much more in keeping with his impression of Mr Forbes’ capacity for work than the referee reports he had seen earlier. He said that his estimate of a 30% incapacity for work as a clerk was based on the positive referee reports and the history of a work promotion. Having considered the Minute, he said he thought that Mr Forbes’ mental impairment for work as a clerk was 45-60%. He said that when one adds in a component for the physical impairment resulting from the osteoporosis and the wrist problems, the prescribed impairments have diminished Mr Forbes’ capacity for work as a clerk by 55-60%.
51. Dr Davies is Mr Forbes’ general practitioner. In his evidence he spoke of some of the social effects of the brain injury. He said Mr Forbes “is frontal”, which he described as meaning that he does not pick up on cues from others and thus has difficulties with relationships. That is of significance in both employment and social situations, as was confirmed by Mr Hawken, and by Ms Meade in her report (A3). Dr Davies said that he found it remarkable that Mr Forbes is working at all, with his disabilities.
(iv) Findings as to how prescribed impairments have diminished capacity to work as a clerk.
52. In Freeman, the Full Court of the Federal Court considered an appeal by Mr Freeman against his Class B classification. It was submitted on behalf of Mr Freeman that he was entitled to be classified Class A, even though he had been working full-time as a security guard for some years. The submission was made on the ground that he lacked true capacity for this work due to psychological problems, which were a prescribed impairment. The Tribunal had found, as quoted at 161, that Mr Freeman’s performance in civil employment as a security officer, demonstrated his total ability to undertake that employment”.
53. The Full Court on appeal rejected that analysis. Sheppard J said at 164:
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. But there may be cases where, although a member is employed, he is doing his work with such difficulty or under such stressful circumstances that it is plain that he has not any real capacity for it. The fact that he is in employment may be due to the kindness of an employer or of fellow employees or both, or because of his ability, at least for the time being, to mask his disabling condition.
54. Similarly, in Re Thomson, Davies J rejected a submission that s 30(1) of the Act should be interpreted so that a person not be classified Class A if he or she was earning a principal income from full-time employment. His honour dealt with the point as follows:
The last matter I should mention is that Mr G Fisher, who appeared for the respondent, submitted that I should interpret s30(1) of the Act having regard to the object of the legislation which was by classification A to provide the principal income of the incapacitated person, by classification B to provide the incapacitated person with supplementary assistance and by classification C not to supplement income of the incapacitated person. Mr Fisher referred to the provisions of s 31 which provide for invalidity pay of seventy-six and one-half per cent of the annual rate of pre-retirement pay to a Class A person, of thirty-eight and one-quarter per cent of the annual rate of pre-retirement pay to a Class B person and also to s 32 which provides that a Class C person shall receive a refund of his contributions and a lump sum payment equal to one-half of the amount of the refund. I did not, however, adopt this method of interpreting s 30(1). Nor did the Tribunal in Re Jones and Defence Force Retirement and Death Benefits Authority (1982) 4 ALN No 87. To do so would be to determine an appropriate rate having regard to the Class thought to be appropriate to the case. On the contrary, the determination to be made is a determination of the percentage of incapacity. The classification follows automatically from that.
55. We accept Mr Forbes’ evidence and that of Mr Hawken. We find that Mr Forbes makes errors regularly, and that he has had to repeat courses, and that sometimes he has “to read things a number of times before they sink in”.. We also accept that even with his “cheat” notes and stickers, he has problems remembering procedures and jobs and retaining information, and that he cannot take in new concepts. We also accept his evidence that he is not very good at organising himself, and that the way he attempts to do so is to stick rigidly to routines. We do not doubt Mr Forbes’ evidence that he seeks Mr Hawken’s help at least every couple of days, or else asks other staff who do similar work for assistance. We also find that he can not handle stress. He said that when he had attempted to do his supervisor’s job on higher duties, while Mr Hawken was on leave, he could not cope and got so stressed that he had a grand mal seizure.
56. We find on Mr Hawken’s evidence that although, with a great deal of supervision and assistance, Mr Forbes can perform at a satisfactory level, he does not perform at the same level as other people employed at the Technical Officer Class 2 level.
57. We realise that it is only in an unusual situation that it would be appropriate to find that a person’s capacity to undertake employment, which he or she is undertaking on a full-time basis, has been substantially diminished. However, we find that this is one of those unusual situations referred to by Sheppard J in Freeman. We find that Mr Forbes’ continuing employment with the Department of Defence is due to the kindness of his employer and his fellow employees. We find that it is only because of the generous and patient supervision of Mr Hawken, and because of the Equity and Diversity policy of the Department of Defence, that Mr Forbes has retained employment with the Department, in spite of the recent restructure. We accept Dr Craven’s assessment of the degree to which Mr Forbes’ prescribed physical and mental impairments have diminished his capacity for work as a clerk. We find that as Mr Forbes has managed to hold his employment, the lower end of Dr Craven’s estimate of 55-60% is appropriate. We find that the degree of diminution of capacity to undertake employment as a clerk, taking into account both mental and physical impairment, is 55%.
CONCLUSION
58. We have already said that we accept Mr Dubé’s submission that it is appropriate to give more weight to our finding as to diminution of capacity for civil employment as a clerk, than to our finding as to civil employment as a Trades Assistant. That is in accordance with the decision of Davies J in Re Thomson. His Honour added at p434-5:
The range of work that Mr Thomson can now undertake has been reduced by at least 50 per cent for he is now precluded from all tasks that involve manual work. But, he is in full employment and it is not shown that the range of work is such as to limit the remuneration which he could otherwise expect form his work. Indeed, he appears presently to be holding positions of more authority they he did previously. Moreover, the range of work available to him is still a wide one.
Mr Thomson mentioned in his evidence some dissatisfaction with work as a credit officer. However, the history of his employment does not show continued satisfaction with any particular type of employment.
The task then is to place a percentage figure upon these facts. Mr Thomson is partially incapacitated for work and the range of jobs which he may undertake is much reduced. On the other hand, there is no reason why he should not continue in full employment in work as satisfying and as well remunerated as the work he would have been likely to do but for his impairment.
In my opinion 25 percent is the appropriate figure for a case such as this.
59. In this matter, we have also found that the range of civil employment Mr Forbes can perform is reduced by half, i.e. one of the two kinds of civil employment Mr Forbes might reasonably undertake is no longer available. He can no longer work as a Trades Assistant (Aircraft Maintenance) and the only civil employment for which he has capacity is as a clerk. However this matter is distinguishable from Re Thomson in that there is also a significant reduction in Mr Forbes’ capacity to work as a clerk. We have found that there is a 55% diminution in capacity for work as a clerk. We find that it is appropriate to add an additional component to recognise that Mr Forbes is now totally incapacitated for work as a Trades Assistant, which is the work for which he was being trained during his Defence Service. Bearing in mind that he has been employed for the last 17 years as a clerk, we consider that a small additional component is appropriate to take account of the fact that Mr Forbes has no capacity to work as a Trades Assistant.
60. We find that the degree to which Mr Forbes’ prescribed physical or mental impairment has diminished his capacity to undertake the two relevant kinds of civil employment is 60%. It follows that we find that he should still be classified Class A.
61. The decision under review will be set aside. In substitution we will decide, in accordance with s 34 of the Act, that from 14 June 2002:
(i) Mr Forbes’ percentage of incapacity in relation to civil employment was 60 percent; and
(ii) His classification in respect of incapacity from 14 June 2002 remained Class A.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Associate Professor J.H. Maynard, Member.
Signed: Josephine McKay
AssociateDates of Hearing 1 and 2 December 2003
Date of Decision 16 January 2004
Counsel for the Applicant Mr P Triggar
Solicitor for the Applicant KCI Lawyers
Solicitor for the Respondent Mr B Dubé
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