Gladwin and Defence Force Retirement and Death Benefits Authority
[2005] AATA 535
•7 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2004/113
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN ANTHONY GLADWIN Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date7 June 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that the applicant’s classification remain at 40 percent, Class B, with effect from 17 October 2003; that “electrician”, “general clerk”, and “sales assistant” were the relevant kinds of civil employment which a person with the applicant’s vocation, trade and professional skills, qualifications and experience might reasonably undertake, and “disc protrusion at L5/S1 with associated left-sided sciatica” constitutes his prescribed impairment for the purposes of the Defence Force Retirement and Death Benefits Act 1973.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – determination of classification for percentage of incapacity for civil employment – employment which a person with the applicant’s vocation, trade and professional skills, qualifications and experience might reasonably undertake – decision set aside
Defence Force Retirement and Death Benefits Act 1973 ss 30, 34
REASONS FOR DECISION
7 June 2005 Senior Member WJF Purcell 1. This is an application for review of a decision of a delegate of the respondent (the Authority) of 9 September 2003, that the applicant should be reclassified from 40 percent, Class B, to 15 percent, Class C, with effect from 17 October 2003; that “electrician”, “general clerk” and “sales assistant” were the relevant kinds of civil employment which a person with the applicant’s vocational, trade and professional skills, qualification and experience might reasonably undertake; and “Disc protrusion at L5/S1 with associated left-sided sciatica” constituted his prescribed impairments, for the purposes of the Defence Force Retirement and Death Benefits Act 1973 (the Act). The decision was affirmed on 26 March 2004 by the Authority.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with exhibits tendered by the parties. Mr Swan appeared for the applicant, who gave oral evidence and called Mr A Munyard, Orthopaedic Surgeon, as a witness. Mr Dillon was counsel for the Authority, which called Messrs G Lewis and J Middleton, Orthopaedic Surgeons, as witnesses.
3. The applicant, who is 39 years of age, enlisted in the Australian Army (the Army) on 12 January 1982, as an Army Apprentice Electrician, and obtained qualifications as an Army Electrician. He was discharged, as medically unfit for service, with effect from 17 January 1990, following a Medical Board examination of 1 December 1989, with a diagnosis of “lumbar disc lesion and anxiety”. At the time of discharge, he held the rank of Private.
4. On 5 August 1983 the applicant reported suffering from lower back pain resulting from a strain to his mid lumbar area while lifting an object. He was placed on light duties for three days. On 6 August 1983 he received a knock to the inflamed area of his back. He was examined by the roster medical attendant and prescribed mild pain killers. His back remained sore when bending, and on 8 August 1983 he was placed on restricted duties, with no heavy lifting, no physical training or sport until 15 August 1983. The complaint resolved itself with mild pain killers and some physiotherapy.
5. On 29 January 1988 the applicant reported suffering from chest pains and stress. He was referred to Dr Spragg, Consulting Psychiatrist, for assessment. Dr Spragg saw the applicant on 11 February 1988, and again on 25 February 1988. He also interviewed the applicant’s wife. Dr Spragg reported that the applicant’s anxiety stemmed from his concern at being posted away from his family. The applicant understood his obligations to the Army, but wished to remain close to his wife, who was pregnant at the time. Dr Spragg recommended the applicant be reclassified to S3 and have his duties restricted to base, or to any area where he would not be away from his family for more then three days.
6. In about March 1988 Dr Spragg reported that the applicant had stated that his anxiety was getting worse. On 7 March 1988 his anxiety had increased to a degree that he had requested a discharge from the Army. He was referred to Dr Williams, Consulting Psychiatrist, for a second opinion concerning his anxiety symptoms and chest pains. In October 1988 he was posted to Chief Engineers, Duntroon, ACT, and on 1 November 1988 he injured his lower back lifting a 40 kg roll of cable out of a work utility. He received initial treatment at the Regimental Aid Post, Duntroon, and Dr Shannon prescribed analgesia, anti-inflammatory medication, physiotherapy and bed rest.
7. On 21 November 1988 the applicant reported to sick parade complaining that the pain in his back had recurred as a result of lifting a heavy object three weeks previously. He was again placed on sedentary duties, with no heavy lifting or physical training until 30 November 1988. The condition continued, and on 30 November 1988, his restricted duties were extended until 23 December 1988.
8. In February 1989 the applicant exacerbated his back injury whilst lifting a 60 kg transformer out of a work utility at the Manura Range, ACT, and again received treatment at the Regimental Aid Post, Duntroon from Dr Shannon. Dr Shannon arranged for a MRI of his lumbo-sacral spine, which was undertaken at the Westmead Neurological Centre. On 13 July 1989 the applicant was examined by Dr Shannon, who reported that the pain in the back of the leg on driving had reoccurred. However, the applicant was not suffering back pain. Dr Shannon’s report notes possible lumbar disc protrusion and sets out a plan of management which included a CAT scan and a consultation with an orthopaedic surgeon. The applicant was assessed as not fit for duty. The report of Dr Ho, Radiologist, of 12 September 1989 noted degenerative change at L5/S1, and decrease in signal intensity at L4-5 indicating dehydration.
9. On 18 September 1989 the applicant was referred by Dr Shannon to Dr Chandran, Consultant Neurosurgeon. Dr Chandran noted that the left sciatic pain had not responded to physiotherapy and bed rest. The CAT scan results were normal, however, X-rays showed a narrowing of the disc and a MRI scan showed a disc protrusion on the left and centre of the L5/S1 level. Dr Chandran found no neurological deficits, and the straight leg raising was 90 degrees on each side. Dr Chandran advised the applicant to have an epidural steroid injection, and potentially a surgical excision in the lumbar spine. On 5 December 1989 Dr Chandran examined the applicant following an epidural steroid injection which gave him no relief. Dr Chandran noted that the MRI scan clearly showed a lesion at the L5/S1 level; and that he had discussed surgery with the applicant, who was not keen to proceed with surgery at that time.
10. The applicant was medically discharged from the Army on 17 January 1990, and moved to Adelaide in March 1990. On 5 July 1990 he was examined by Mr Dhillon, Surgeon, at the Memorial Medical Centre in Adelaide. Mr Dhillon reported to the CMO that the applicant maintained that he continued to suffer lower back pain extending down the left leg. He was unable to carry out any lifting or frequent bending or climbing ladders, and as a result he could no longer carry out his trade as an electrician. On examination, he found that the applicant suffered tenderness at the lumbo-sacral region worse on the left; his leg movement in his right leg was 90º, and on the left his movement was restricted to 60º. Mr Dhillon considered that the applicant had suffered a disc protrusion at L5/S1 level in the lifting incident in November 1988, and that the applicant was still suffering underlying pathology which accounted for his persistent ongoing symptoms. In terms of future treatment Mr Dhillon thought that the applicant would need to consider surgical management; and opined that the degree to which the applicant’s back condition had diminished his capacity to undertake the kind of civil employment specified in the medical discharge forms, at present, was 50 percent.
11. The applicant, who was an Electrician Grade A, and had undertaken a course in Electrical Apprenticeship, Electronics Grade 3, had obtained a position with Dick Smith Electronics in Canberra after his discharge from the Army. He left after five weeks, because of his inability to lift stock, which caused pain in his back and left leg. Soon after his arrival in Adelaide in March 1990, he obtained a position as Assistant Manager at Hungry Jack’s for six months. He supervised staff, but resigned due to severe pain in his back and left leg, caused by lifting and moving stock.
12. On 7 September 1990 the applicant was classified under s 30 of the Act, as 40 percent, Class B, with effect from 18 January 1990, the day after discharge. His retiring impairment was found to be “disc protrusion L5/S1 and anxiety”, and the relevant kinds of civil employment were “electrician” and “clerk”. Section 30 of the Act provides:
“(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.
…”
13. On 23 October 1990 the applicant’s treating General Practitioner, Dr Johns, reported that he had been consulted by the applicant on four occasions since 28 May 1990, and since that period had treated him on four occasions. Dr Johns noted straight leg raising was restricted to 70º on the left, and that the applicant was having difficulty maintaining his current employment due to increased pain. Dr Johns noted that in his opinion the applicant would require some form of retraining [T54]. From November 1990 to July 1992 the applicant was unemployed.
14. On 6 November 1991 Mr Cornish, Orthopaedic Surgeon, reported that the applicant had established disc damage limited to the lumbo-sacral level producing mechanical instability at that level of his spine, together with a tension left S1 sciatica. Mr Cornish noted that the applicant’s condition could be effectively treated with the involvement of surgical decompression and a successful spinal fusion. In his opinion, the applicant’s incapacity severely restricted his capacity to work as a security guard or in any heavy labouring jobs (60-100 percent) and as an electrician. Mr Cornish noted that the applicant’s capacity in this context was moderate (30-60 percent) [T63]. He provided a supplementary report dated 14 December 1991 in which he noted that the category of “clerk” would be an appropriate employment type, and the applicant’s capacity to undertake that type of employment was restricted to a moderate degree (30-60 percent).
15. On 3 December 1991 Dr Goldney, Consulting Psychiatrist, reported that the applicant did not demonstrate any symptoms sufficient to warrant a psychiatric diagnosis. Dr Goldney found no psychiatric restriction on the applicant’s employment prospects. On 28 May 1992 his treating General Practitioner, Dr Pater, noted that the applicant had had two episodes of minor back strains prior to his serious back injury in 1989. They occurred in 1983 and 1988. Dr Pater reported that the applicant made a full recovery from both of these episodes. On 26 June 1992 Dr Pater further reported to the Authority that in his opinion the medical evidence suggested that the applicant’s significant back injury occurred on 14 February 1989, and not on 1 November 1988 as previously reported.
16. The applicant obtained a sales position then in the office with Smart Lighting, from July 1992 to August 1997. He left when his additional duties of lifting and delivering stock, as well as getting in and out of the car, upset his existing back condition. From August 1997 until October 2003 the applicant worked for Rexel Lighting in Adelaide as a salesman/sales representative. He said in evidence that more handling of stock was required due to the SA Distribution Centre closing, and in addition, getting in and out of the car regularly caused pain in his back and left leg.
17. On 21 February 1994 Mr Hall, Orthopaedic Surgeon, reported that the applicant was working full-time as a salesman for an electrical contractor. The work did not involve a lot of manual work, but climbing in and out of the car aggravated his symptoms. Mr Hall considered that the applicant had a left L5/S1 protrusion. On 23 September 1996 Dr Long, Occupational Physician, considered that the applicant’s capacity to undertake employment as an electrician, clerk and salesman had been diminished to a moderate degree, 30-60 percent. On 30 June 1998 Mr Hall re-examined the applicant and noted that the persistent left sciatica had changed very little from the symptoms he had experienced four years previously.
18. On 14 July 1998 a MRI scan of the lumbar spine showed a small focal left lateral protrusion of a mildly degenerate L4-5 disc. There was left postero-lateral herniation of the L5/S1 disc effacing the left sided S1 nerve root. It was noted that the L5/S1 disc protrusion had not altered in size since the previous scan, however there had been continued degeneration of the disc.
19. On 25 October 1999 Peter Kesting, Physiotherapist, noted that he had been treating the applicant since 26 August 1999. He concluded that the applicant was getting temporary relief from treatment which included traction, muscle work to the left gluteal and some careful mobilising of the left L4/5 area.
20. On 18 August 2003, Mr Lewis, Consultant Orthopaedic Surgeon, provided a report. Mr Lewis noted that the applicant was taking analgesic medications, including Panadeine Forte and Voltaren cream on occasion. In Mr Lewis’ opinion, the applicant’s capacity to undertake employment as an electrician had diminished by a moderate amount, that is, 30 percent to less than 60 percent. The applicant’s capacity to undertake employment as a general clerk had been diminished by a minimal amount, that is, less than 10 percent. The applicant’s capacity to undertake employment as a salesman had been diminished by a minimal amount, that is, less than 10 percent. The applicant’s overall assessment to undertake employment had been diminished by a small amount, that is, 10 percent to less than 30 percent.
21. On 27 November 2003 Mr Munyard, Orthopaedic Surgeon, opined that the applicant had disc degeneration at L4/5 with disc protrusion at L4/5 and L5/S1. The report noted that due to his back condition the applicant would have difficulty with a number of activities such as sitting, standing, bending and lifting. Mr Munyard concluded that the applicant’s prognosis indicated deterioration of his condition, and he considered that the impairment relating to the pain in his left leg was related to pressure on the nerve and that this was a causally connected impairment. Overall, Mr Munyard considered the applicant had a moderate disability to undertake employment as an electrician, general clerk and salesman.
22. The applicant obtained employment with Versalux Lighting from November 2003 to February 2004 as a sales representative. Driving and handling heavy stock again caused pain in his back and left leg. Since March 2004 the applicant has worked for Osram Australia as a sales representative. He sells light globes which are not as heavy as fittings, but there is a large amount of driving which causes pain in his back and left leg. His left leg becomes numb on long journeys, but he persists.
23. On 9 September 2003, the applicant’s classification was reviewed and he was reclassified, under s 34 of the Act, from 40 percent, Class B, to 15 percent, Class C, with effect from 17 October 2003. “Disc protrusion L5/S1 and anxiety” remained the description of his prescribed impairment, and the relevant kinds of civil employment were found to be “electrician”, “clerk” and “salesman”. Section 34 of the Act, as far as is relevant for the purposes of this review, provides:
“(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; or
(aab)what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a recipient member who has died;
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).
(2)Where a recipient member is reclassified under this section, the Authority shall specify the date from which the reclassification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly.
…”
24. The applicant requested a review, and on 26 March 2004 the Authority found that “electrician”, “general clerk” and “sales assistant” were the relevant kinds of civil employment which a person with the applicant’s vocation, trade and professional skills, qualifications and experience might reasonably undertake, and that “disc protrusion at L5/S1 with associated left-sided sciatica” constituted the prescribed impairment. The decision confirmed that the applicant be reclassified to 15 percent, Class C, with effect from 17 October 2003.
25. The applicant maintains that since his discharge he continues to be incapacitated as a consequence of his low back pain and left sided sciatica. He has continued to take anti-inflammatory and analgesic medications, and has received ongoing treatment, including physiotherapy. He continues to be moderately impaired, and he has a large disability as an electrician, and a moderate disability as a salesman. He is properly classified as 40 percent, Class B, and the civil employment is “electrician” or salesperson”, and not “clerk”, as he has never done clerical work, only activities which mesh with clerical work, such as photocopying, and the preparation of reports which mesh with the occupation of “electrician” or “salesperson”.
26. The Authority submits that the kinds of civil employment that a person with the applicant’s skills, qualifications and experience might reasonably undertake are “electrician”, “general clerk” and “sales assistant”, and that, as and from 17 October 2003, the applicant’s level of incapacity under s 34 of the Act was 15 percent, Class C. In respect of s 34(3) of the Act, it argues that the applicant’s mental or physical incapacity by reason of which he was retired was an “inability to undertake heavy lifting, prolonged standing or sitting”. As to s 34(4) of the Act, the applicant’s retirement impairment was “disc protrusion at L5/S1 with associated left sided sciatica”. The applicant’s history of employment with real employers, who are not acting out of kindness, demonstrates a real capacity for that type of work. Having taken only 29 sick days in 13 years, the applicant has shown only a small incapacity for the type of work that he has undertaken successfully for 13 years.
27. The applicant was an impressive witness. I accept him as a witness of truth; and I accept also, his evidence as to the level of pain he suffers, on an intermittent basis, because of his injury. In my view, he has displayed stoicism and determination to continue to work for so many years, despite the pain he endures. The remaining witnesses were medical practitioners who gave their evidence with objectivity and professionalism; but I prefer the evidence and opinions of Mr Munyard in any area of dispute in the evidence.
28. The applicant said in evidence that when he worked at Dick Smith Electronics in 1990, there was a lot of lifting of heavy computers. The work at Hungry Jack’s also involved some heavy lifting. He experienced pain in the back of the left leg, and for the first time had pain in the lower back. At Smart Lighting he was involved in sales, taking orders over the telephone, and was able to move around. He was involved, over the five years, with deliveries, in the company’s lantern replacement business, but near the end of his employment management was expecting him to install the lanterns, which he was unable to do. He went to Rexel Lighting in August 1987. By September 1997 he was taking two Panadeine Forte and six Panadeine per day, plus Voltaren.
29. The applicant said in evidence that at Rexel Lighting, which was a wholesale business, he was a salesman/sales representative. He had good and bad days, with major flare-ups about four times per year, which last up to three weeks, when he takes large amounts of painkillers. The pain was predominantly in the left leg until towards the end of 2003 when lower back pain intensified. He said that he can always keep walking, but is in excruciating pain from time to time. Rexel Lighting closed its South Australian Distribution Centre, and as a consequence the applicant had to carry with him a quantity of light fittings. This was causing increased pain. At Rexel he was involved also, in quoting to customers and entering orders, and keeping customer records in a computer. He prepared regular reports to the manager on sales figures and the movement of stock.
30. The applicant said in evidence that he was approached by Versalux in about September/October 2003, and because the work at Rexel was becoming more arduous, he thought the work with Versalux, which was a national distributor, would be less vigorous, and his work place would be closer to his home. He said that the decision to change jobs was 40 percent because of his back, and 60 percent because of business opportunity. He did not tell them about his back problems. He was required to travel away from Adelaide to eg Whyalla, Mount Gambier, and every hour he had to stop driving to “stretch”, and ease the pain. He recalled one incident when he flew to Darwin, and experienced excruciating pain during take off, but of necessity, he was unable to stand up at that time, and he was in a “terrible state”.
31. The applicant has been working for Osram since March 2004. He is a salesman, selling to wholesalers. He spends some time in the office following up customers, but spends a lot of time on the road. In August 2004, he drove to Mount Gambier. He had pain when he left Adelaide, and he says that when he reached Tailem Bend he got out of the car, and experienced crippling pain as he stood up. He stopped regularly on the way to Mount Gambier, and when he arrived at the hotel, he rested; but next morning when he tried to get out of bed he could not stand up. It took three weeks for the pain to settle. He did nothing around the house, on the weekends, so that he would be able to go to work on the Monday.
32. The applicant said in evidence that Smart Life was the only employer who knew that he suffered from back problems. He said in evidence that as the records show, he has taken only 29 days’ sick leave in the last 13 years. 14 days of leave were taken while he was working at Smart Life for five years. He has wanted his subsequent employers to become aware that he has back and left leg problems. He takes his analgesics, and more recently, since September 2004, Mr Munyard has prescribed morphine for those occasions when the pain is most severe. He said simply, that he persists and goes to work, when he could and should stay home.
33. Mr Munyard in his report of 27 November 2003 said, in part, as follows:
“…
2With regard to his possible occupation as an electrician. This man would have difficulty with a number of the activities required of an electrician. He has difficulty sitting, standing, bending and lifting, all of which are the requirements of an electrician.
With regard to duties of a general clerk he has difficulty in sitting for any length of time. He has difficulty bending and lifting. This would cause troubles with having to sit to write reports, sorting, opening and sending mail and filing.
With regard to the activities of a sales assistant, with his inability to stand for prolonged periods he would [have] difficulty in attempting to cope with a number of the activities of a sale[s] assistant. Products such as paint and sawn timber would be very difficult for him to deal with. He would have difficulty in bending to assist in the sale of footwear. Many foods and drinks come in cartons and he would be unable to handle those from that point of view.
3With regard to an assessment of his ability to undertake the activities of an electrician I feel that he would have a large disability. Most of the activities required of him he would find difficult if not impossible. He cannot lift, bend, carry, sit or stand for long periods.
With regard to activities of a general clerk I feel that he would probably have a moderate disability at least. It would depend to some extent upon what role he had to play but if he had to sit for long periods then this would make it very difficult for him
With regard to the situation of a salesman I feel that he probably had a moderate disability in that regard. In that situation he does have the ability to sit and stand and move around. There would be a reasonable amount of walking involved but activities such as bending, carrying, lifting would all tend to aggravate his condition. I feel that he has an overall assessment of at least a moderate disability.
4I feel this man’s prognosis is for deterioration. It is noted in the MRI of 14/07/1998 that there was development of an L4-5 disc prolapse and continued degeneration at L5-S1. I feel that this will continue.
…”[T119/251-252]
34. Mr Munyard said in evidence that since he saw the applicant on the first occasion on 14 November 2003, the applicant has become a patient, and he has seen him on two subsequent occasions, on 13 September 2004 and 14 March 2005. When seen in September 2004, the applicant said that on 17 August 2004 he had driven to Mount Gambier; and his back had flared up considerably, with a lot of pain in his lower back on the left side. He was taking up to 12 Panadeine Forte in four hours. By the time of the consultation the pain had reduced to about 20 percent of the level on 17 August 2004. The applicant had said that he was having one of these attacks about every four months; and Mr Munyard prescribed some low dose, 5 milligrams of MS Contin, which is morphine, to be used only at the time of the exacerbations. When last seen on 14 March 2005, the applicant reported that in his current sales position he still had to drive long distances. He was having to stop, get out and rest before he could go on again. The MS Contin had not changed the overall picture, but it was helping during the acute exacerbations.
35. Mr Munyard said in evidence that there would be very limited electrical work that the applicant could perform. He has a large disability in that area. As to clerical work, there were some aspects the applicant could cope with, but he can only sit for half an hour, he has a problem bending over, and would have difficulties retrieving files from cupboards and drawers, and trouble lifting heavier objects. The applicant, in Mr Munyard’s view, has a moderate incapacity in this area of work. In relation to sales-type work, Mr Munyard said that there were restrictions on the amount and type of work that the applicant could perform. He would not be able to work at Bunnings, for example, where there is an amount of heavier type materials to deal with. Mr Munyard considered that having regard to the overall nature of sales work, the applicant had a moderate impairment, and that overall the applicant has a moderate incapacity for work.
36. Mr Munyard said in the course of his cross-examination that although it was a little unusual for a person with the applicant’s level of symptoms to have such little time off work, on sick leave, some people tolerate pain differently, and if a person is not working with the employer every day, and is out on the road for a considerable amount of time, the person is better able to mask the disability.
37. In the course of his cross-examination Mr Munyard was asked to outline his understanding of the classifications. The transcript of proceeding reads, in part, at p 11:
“…
MR DILLON: All right. Well, what would be your - - -? --- Well, I mean this chap is a qualified electrician. He now can’t do that work at all and he worked for a number of companies and he’s had to sort of come down a step each time. So he’s obviously got more than just a small incapacity. This is sort of affecting his life considerably, I would imagine.
…
MR DILLON: All right. In the context of the moderate incapacity being between 30 per cent and 59 per cent for the purposes of the Act, could you explain why you say Mr Gladwin has an incapacity of that degree for the job of salesman now that you have just heard Mr Gladwin’s evidence that he had had 29 days off in 13 years? --- Well, I think we all know he has a disability with regard to his back. Therefore he can’t be – can’t be no disability. Small disability to me means that you can do most of the job which you would normally be able to do. A moderate disability means that you’ve had to change direction altogether and that’s what this man’s done. Severe disability means that you’re really having great difficulty in finding any work that you can cope with.
For a category of work, salesperson, where if we accept Mr Gladwin’s evidence that he over 13 years he’s had 29 days off and only one of his employers has been aware of his incapacity at all, in your view is that compatible with your understanding of the 30 – of the moderate incapacity for that kind of work? --- Yes, I think it is because, I mean, he’s changed from a different occupation, where he’s down a whole grade I reckon, a long way down.
…”
38. The applicant was examined by Mr Middleton, Orthopaedic Surgeon, at the request of the Authority, and Mr Middleton reported on 28 September 2004, in part, as follows:
“…
In view of this very long history, it seems unlikely that this problem will resolve spontaneously with further time, even though the large majority of such disc problems do settle with sufficient time. Mr Gladwin is now giving some thought to pursuing a surgical solution to these persistent problems; I would consider it quite reasonable for him to at least investigate this possibility.
This ongoing lower back disability clearly places significant restriction on a number of activities for him. It has prevented all sporting activities. It makes any lifting activity difficult. It also makes it quite difficult for him to bend or twist, or achieve awkward positions. When problems are more severe, his capacities are even further reduced, and he can have difficulties with any substantial amount of standing or sitting.
…
I would assess Mr Gladwin’s ability to undertake employment as a general clerk or as a sales assistant as fitting the small category described in your Annexure 2. His impairment to perform activities as an electrician is clearly greater, and I would regard this a moderate.
…
He has clearly demonstrated an ability to work as a general clerk or sales assistant. Although his ongoing back problems do place some restrictions on the types of work that he takes on in these categories, he is clearly capable of continuing this work.
…
From an orthopaedic point of view, Mr Gladwin does not have any substantial other impairment secondary to his impairment from his lumbosacral disc protrusion. His disc protrusion has made it much more difficult for him to maintain any reasonable level of general fitness, but I am not sure that this necessarily constitutes a significant impairment.
…”
39. Mr Middleton said in evidence that the applicant’s history of intermittent quite severe episodes three or four times per year was consistent with the clinical and radiological signs. As to his absences from work on 29 occasions in 13 years, Mr Middleton said that he thought this was consistent with the applicant’s problem “Whether it could have been more or less may reflect how determined or otherwise he might have been to work in adversity, but I think it’s perfectly reasonable that he’d need that amount of time off” [transcript p 27-28].
40. Mr Middleton gave evidence that he had not addressed the question of an overall assessment of incapacity, but that if he had to average the three areas it clearly became a “line ball”, but if he was gong to average them, electrical was “moderate”, salesman/sales person was “small”, and clerk was “small”. In two the applicant is “small”, and in one he is “moderate”, then it might just fall into the “small” category, but he thought that it would be fairly line ball.
41. Mr Munyard said that in relation to the occupation of electrician, the applicant would require a co-operative employer who was happy to have him always working in a pair, at least, and select the jobs that he went to. Mr Munyard thought that the applicant could be a productive electrician in those circumstances, but that it was “fairy tales” to imagine that that could happen. He said that looking at this from two different directions, if the question was as to the applicant’s restriction in going out and getting a job, the restriction would be “large”, but in terms of his ability to work as an electrician, there was a substantial number of things he could do. Mr Munyard said that he was reluctant therefore, to say the incapacity was anything other than moderate.
42. Mr Lewis gave evidence of his view that in relation to the applicant’s absences from work, resolving disc lesions can leave people with greater or lesser amounts of residual symptoms. Some people can return to normal activities, but in other cases there are some residual symptoms, and it does vary a lot. He thought that the figures he had been given of 29 days off in 13 years would probably be about average. He said in evidence that the classifications were very subjective, but he thought that in relation to the work of an electrician, considering the history and clinical features, the applicant’s capacity to undertake that work was certainly reduced by a considerable amount, and he thought it fell within the classification of 30 to 60 percent. In relation to the other classifications, Mr Lewis said that many of the duties such as repeated bending, would be uncomfortable, and in relation to many other duties the applicant could not necessarily perform them easily, but he thought it was possible for him to perform them. He said again, that obviously this sort of thing is a subjective assessment, and on the basis of clinical features, including the history and the examination, his subjective assessment of the applicant’s incapacity was “electrician” moderate, “general clerk” and “sales person” minimal. His overall assessment was that the applicant’s capacity had been diminished by a small amount, that is 10 percent to less than 30 percent.
43. As I said earlier in these Reasons for Decision, I prefer the evidence of Mr Munyard, who has seen the applicant, now, on three occasions, of over a period of some 1½ years, and remains firmly of the views expressed in his first report of 27 November 2003. Mr Middleton carried out a careful and through history and examination. In his oral evidence he was more ambivalent than in his written report. He had not addressed the question of an overall assessment until the day of the Hearing, and as he said in evidence the assessment was “borderline”. Mr Lewis’ history taking was not as careful and complete as the other medical witnesses, and I took this into account when deciding upon the weight to be given to his opinions and evidence.
44. In accordance with s 34(1A) of the Act, the Authority, and hence this Tribunal, shall have regard only to the matters set out in ss (a) to (d). In the matter of McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791, the Tribunal referred to a range of matters which could not be taken into account. It stated at p 792, in part:
“The only matters which it may take into account in determining the percentage of incapacity are those referred to in the provisions. Accordingly, the Tribunal cannot take into account the ageing process, a depressed labour market, a state of unemployment, the shortage of employment for those who might engage in a particular occupation, circumstances foreseeable only in the long term unless made appropriate and prevention of continuance in non-civil employment.”
45. In relation to s 34(1A)(a) of the Act, I am to have regard to the applicant’s vocation, trade and professional skills, qualifications and experience. The applicant is qualified as an Electrician Grade A, and since leaving the Army he has worked as a manager and as sales person/sales representative.
46. In relation to s 34(1A)(b) of the Act, I consider that the applicant might reasonably undertake the civil employment of electrician, or sales person/sales representative. I am satisfied on the evidence that whilst undertaking employment as a sales person/sales representative over the last 13 years, the applicant has, as an essential element of these occupations, undertaken clerical duties, such as preparing orders, invoices, stock takes, monthly reports and might reasonably undertake employment as a general clerk.
47. In relation to s 34(1A)(c) of the Act, I am satisfied on the evidence that the applicant’s prescribed physical or mental impairment “disc protrusion at L5/S1 with associated left-sided sciatica” has diminished his capacity to undertake the type of work referred to above, and that his percentage of incapacity in relation to civil employment is 40 percent, Class B.
48. Section 34(1) of the Act provides that the Authority may, if it is satisfied, reclassify a person in the appropriate classification set out in s 30 of the Act. I am satisfied on the whole of the evidence that the applicant’s classification should remain at 40 percent, Class B.
49. For these reasons, the Tribunal sets aside the decision under review, and substitutes a decision that the applicant’s classification remain at 40 percent, Class B, with effect from 17 October 2003; that “electrician”, “general clerk”, and “sales assistant” were the relevant kinds of civil employment which a person with the applicant’s vocation, trade and professional skills, qualifications and experience might reasonably undertake, and “disc protrusion at L5/S1 with associated left-sided sciatica” constitutes his prescribed impairment for the purposes of the Defence Force Retirement and Death Benefits Act 1973.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .....................................................................................
AssociateDates of Hearing 2/3 May 2005
Date of Decision 7 June 2005
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan Lawyers
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent AGS Canberra
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