Griffiths and Defence Force Retirement and Death Benefits Fund - [2000] AATA 181

DECISION AND REASONS FOR DECISION [2000] AATA 181

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/790

GENERAL ADMINISTRATIVE DIVISION )

Re ROBERT NOEL GRIFFITHS
Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS FUND
Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Miss A.M. Brennan (Member) Dr K.P. Kennedy (Member)

Date9 March 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS MBE
(Senior Member)
CATCHWORDS
BENEFITS – incapacity for civil employment – extent of incapacity – medical evidence – types of employment – limited to consider 'prescribed conditions' only
Defence Force Retirement and Death Benefits Act 1973 ss.34, 36

REASONS FOR DECISION

9 March 2000 Senior Member J.A. Kiosoglous MBE Miss A.M. Brennan (Member) Dr K.P. Kennedy (Member)

The applicant seeks review of a decision of a delegate of the respondent dated 27 June 1999 (T2), which varied the decision of a delegate of 25 March 1999 (T4), in which it was determined that the applicant's percentage of incapacity for civil employment was 50% Class B with effect from 25 March 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T37), and 3 exhibits tendered by the respondent (Exhibits R1-R3). The applicant appeared unrepresented and gave oral evidence. Mr R. Whithear of counsel represented the respondent.
The issue before the Tribunal is whether the conditions which were present upon the applicant's retirement from the Defence Force (Army) are at such a level that he can be said to suffer 60% Class A incapacity for civil employment pursuant to s.34 of the Defence Force Retirement and Death Benefits Act 1973 (the Act).
The applicant, who was born on 5 July 1953, joined the Army on 31 January 1973. He was discharged "medically unfit" with effect from 9 March 1983. The Final Medical Board identified the following medical conditions at the time of discharge (Exhibit R2/R1/a-b):

Deep vein thrombosis
Pulmonary emboli
Cruciate laxity left knee
Chondromalacia left knee

On 24 November 1983 a delegate of the respondent determined that, for the purposes of the Act, the applicant's percentage of incapacity for civil employment was 60% Class A with effect from 10 March 1983 (Exhibit R2/R13/a-b). A review of the applicant's invalidity classification was conducted on 2 April 1987 (Exhibit R2/R13/c). The respondent retained a classification of 60% Class A. The applicant's invalidity classification was further reviewed on 31 March 1994 (Exhibit R2/R14). A delegate of the respondent varied the applicant's classification from 60% Class A to 20% Class C with effect from 13 May 1994. Upon reconsideration on 23 September 1994 the respondent varied the decision of 31 March 1994 and reclassified the applicant as 40% Class B with effect from 13 May 1994 (Exhibit R1). On 25 March 1999, in a further review of the applicant's invalidity classification, a delegate of the respondent determined that the applicant should retain his classification of 40% Class B (T4). By way of a letter dated 29 March 1999 (T20) the applicant requested a review of the decision of 25 March 1999. On 27 June 1999 the respondent varied the decision of 25 March 1999 determining that the applicant's incapacity for civil employment was 50% Class B with effect from 25 March 1999 (T2).
A summary of the applicant's conditions and their development is contained in the reconsideration by the Defence Force Retirement and Death Benefits Authority (the Authority) of 27 June 1999 (T2/8):
"13. In April 1978 whilst playing football Mr Griffiths had sustained a lateral blow to the left knee which resulted in a strained medial ligament. He had been in knee plaster for 6 days when he had experienced pain and swelling in his leg. A venogram had been normal and the leg had then settled down. The next month Mr Griffiths had complained of right sided chest pain. He had undergone a lung scan which had confirmed the diagnosis of Pulmonary Infarction. He had also developed a deep vein thrombosis in his leg and had been treated with Heparin and later Warfarin for 3 months. In April 1982 Mr Griffiths' knee joint had again become sore and swollen. A diagnosis of chondromalacia patellae had been made and he had been treated with rest and quad drills. Mr Griffiths had undergone an operation entailing tendon transposition to his left knee in July 1982 and during post operative recovery he had again developed a bilateral pulmonary embolism requiring treatment with Warfarin. Given the ongoing instability of his left knee and his apparent proneness to vascular problems he had been discharged medically unfit on 31 January 1973. At the time of his discharge he could not run or stand for any length of time due to knee pain.
14. Accordingly, the Authority concluded that the incapacity that had caused Mr Griffiths' retirement was the risk of further deep vein thrombosis and pulmonary emboli as well as knee pain which had prevented him from running and standing for any length of time."
In determining the rating that should be assigned to the applicant, the relevant legislation is s.34 of the Act which provides:
"34 Reclassification in respect of incapacity
(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.
…
(3)       Where the Authority reclassifies a recipient member (other than a member to whom section 37 applies) under this section, the date specified by the Authority as the date from which the reclassification has effect shall not be a date earlier than the date on which the Authority reclassifies the member unless:
(a)the member is reclassified as Class A or, having been classified as Class C, is reclassified as Class B; and
(b)the Authority is satisfied that special circumstances exist that justify an earlier date being so specified."
At the hearing the applicant told the Tribunal that he had joined the Army, specifically the Royal Australian Engineers, on 31 January 1973. He stated that he had initially joined for six years but signed on for another six years at the expiry of the first six years. He further stated that he was discharged from the Army as medically unfit in March 1983. The applicant stated that he had injured his left knee whilst playing organised sport in 1978. He had torn a ligament and required plaster. After a couple of weeks of treatment the applicant stated that he began to experience pain in the calf of his left leg. He was sent to hospital in Melbourne so that he could be checked for blood clots and after he was discharged he was sent to the Military Hospital at Puckapunyal for physiotherapy and light duties. A couple of weeks later he reported for work and at about 9.00 am had difficulty breathing. He was taken to the Repatriation Hospital where he was told that he had suffered a pulmonary embolism. The applicant was then admitted to intensive care for the duration of his recovery. He stated that he was put on Warfarin for three months after this incident. He further stated that he built himself back up to normal fitness and was transferred from Puckapunyal to the 7th Field Squadron in Brisbane. By 1981 he was back to full-time employment.
In the middle of 1982 the applicant stated that after he had attended physical training one morning he helped a civil contractor check a machine. He found that his knee could not support his weight and he stated that he was admitted to hospital where his knee was diagnosed as very unstable. The applicant stated that he had a reconstruction operation on his knee at this time. Prior to that he had been on a course of anti-coagulants. A full plaster was placed on the applicant's left leg for six weeks and he was placed on convalescent leave. The applicant told the Tribunal that he had complications following removal of the plaster, finally being diagnosed with a very serious pulmonary embolism and having problems with subsequent medication.
Following these complications, the applicant stated that he was recommended for discharge, and continued to receive medical treatment up until his discharge in 1983.
He told the Tribunal that following his discharge, it was difficult to find work, which he eventually found as a crossing guard. He gave evidence that he subsequently worked as a cleaner with Telecom from 1986 to 1992, after which time he worked driving machines and later dump trucks. All such work tended to be between 3-4 hours per day, and by 1996 he was driving 6-8 hours per day for Boral.
In 1996 he had several clots in his left leg which became apparent during a holiday in Cairns and has continued on Warfarin ever since. Due to ongoing problems with clotting, he changed jobs at Boral, and worked operating a crusher. He found the requisite climbing in that job too difficult and was also concerned about the effect of the medication on his work overall. He stated that he subsequently lost his job at Boral, where he had worked for a total of three or four years, and believes that his medical condition may have had something to do with that eventuality. He stated that he had lost about 50 days work at Boral due to his medical conditions and the need for blood tests. He stated that he had been told at various times to use a stocking to increase his comfort but has never done so.
He stated that he has had subsequent difficulty in finding work, applying without success for 12 jobs in the past 12 months and has applied for an increase in his pension rate. He described to the Tribunal the difficulties caused at work due to his medication, and what activities he is able to undertake at home. He told the Tribunal that his right knee has got progressively worse since 1994.
medical evidence
dr h.r. magee
Dr H.R. Magee, a Specialist Vascular Surgeon, prepared a report on 18 May 1999 (T36) following his examination of the applicant. Dr Magee referred to the history provided by the applicant that he does experience discomfort and swelling of his leg after prolonged standing or sitting. Dr Magee noted his previous occupations and opined that his present condition would place restrictions on these types of employment. As regards incapacity for work as a plant operator, labourer, storeman or driver, Dr Magee stated that improved comfort could be gained by the use of a support stocking. He noted that a duplex study had revealed incompetence of the left deep venous system.
During his evidence-in-chief, Dr Magee said that he did not believe that the earlier pulmonary emboli were causing any incapacity at the time that he had seen the applicant. Dr Magee considered that the deep venous condition had probably deteriorated since the reports of Dr Sapsford and Dr Mellick because the applicant had experienced pulmonary emboli and episodes of deep venous thrombosis with swelling and discomfort especially if the leg had not been adequately supported. Dr Magee outlined the reasons for recommending the use of a stocking.
Mr Whithear asked Dr Magee how the deep vein thrombosis would affect the applicant as far as the duties of a plant operator, labourer, cleaner, storemen were concerned. Dr Magee replied that if the leg were well supported the stocking would aid his circulation, help control swelling, prevent pooling of blood in his leg and so improve blood flow and decrease the possibility of further thrombosis.
In his written report Dr Magee had opined that the overall disability of the applicant was 60%. During his oral evidence he said that that assessment had taken into account the overall problems including both knees. He did accept however that an orthopaedic surgeon would be better placed to comment on the applicant's orthopaedic condition.
In reply to a question from the Tribunal, Dr Magee said that he was sure that there were labouring jobs that the applicant could do. He thought that there were probably some types of jobs that the applicant could cope with quite easily, such as the duties of a storeman provided it did not involve high or frequent ladder climbing. Dr Magee said that a lot of discomfort in the leg associated with the previous thrombosis could be controlled with an elastic stocking. He stated that he would assess disability attributed to the vascular side alone at a maximum of 30% with the use of a stocking.
dr a.c. blue
Dr A.C. Blue, an Orthopaedic Surgeon, examined the applicant and in his report dated 13 May 1999 (T35) opined that the applicant does suffer from service related minor ligamentous instability in the left knee which had been complicated by early onset osteoarthrosis. Confining himself to the knee disability alone he believed that the left knee disability would have diminished his capacity as follows:

Minimally as a plant operator
Moderately as a labourer
Small as a cleaner
Minimally as a storeman
Minimally as a driver

During his evidence-in-chief Dr Blue said that he did not accept that any problems with the right knee would be in any way related to the left knee problems.
dr j.c. sowby
Dr J.C. Sowby, an Occupational Physician, examined the applicant on 18 February 1999 and in his report of the same date (T16) he expressed the opinion that at that time, the recurrent deep venous thrombosis and pulmonary embolus would cause minimal impairment in relation to the specified positions of plant operator, labourer, cleaner and storeman. Dr Sowby, in assessing the knee impairment, had taken into account both knees but later in his evidence-in-chief, he said that exclusion of the right knee would not have altered his overall assessment. With respect to the knees then his impairment assessment was as follows:

Plant Operator – small
Labourer – moderate
Cleaner – small
Storeman – moderate
Overall – moderate

other medical evidence

There was also some other written medical reports included within the s.37 documents and in Exhibit R2, the authors of which were not called for cross-examination. During the course of the hearing reference was however made to some of these reports.
Dr S.A. Mellick, Vascular Surgeon, had first seen the applicant in 1986 and prepared a report dated 16 December 1986 (Exhibit R2/R6). At that time it was his assessment that the applicant was Class B and not able to function full-time as a plant operator. Dr Mellick also based his opinion at the time on his belief that the applicant might well have some pulmonary insufficiency. When Dr Mellick saw him in 1994 he felt that the applicant's condition had not changed much. In fact after his examination in 1994, Dr Mellick felt that he could work full-time as a plant operator and also as a storeman. Dr Mellick regarded sequelae from the venous pathology to be minimal (as expressed in his report dated 24 August 1994 (T7)).
Dr D. Sapsford, Vascular Surgeon, saw the applicant in 1993. At that stage Dr Sapsford had assessed the extent of the incapacity due to vascular disease as small – less than 30%. Dr Sapsford had also recommended in his report dated 8 November 1993 a compression stocking be worn to minimise the possibility of later complications (Exhibit R2/R8).
The applicant had also been seen by Dr R.V. Kerr, a General Physician, in May 1999. Dr Kerr had prefaced his report (T34) by stating that he had been asked to provide a medical report to support the applicant in respect to having a pay out from his superannuation fund. That report lacked any specific assessment, referred to the fact that the applicant had arthritis and that he appeared to be prone to thrombotic episodes, that he would be unable to work in the industry that he had worked in previously and that he would be precluded from sitting for long hours driving heavy machinery. Dr Kerr then said that for those reasons he recommended a superannuation payout.
In his report dated 15 April 1999 Dr P. Sharwood, an Orthopaedic Surgeon, stated that after an arthroscopy and joint lavage the knee seemed to be quite stable again. Dr Sharwood predicted that eventually a total knee replacement would be needed but that that was not yet necessary.
In relation to the left knee there were also other reports from other orthopaedic surgeons dating back to 1993 and 1994 but those reports have been superseded by the more recent reports and the oral evidence to which reference has already been made. Those earlier reports are not inconsistent with the more recent reports.
A report dated 27 October 1993 (Exhibit R2/R7) had been provided by Dr R. Edwards who had been the only Specialist Respiratory Physician to see the applicant at any time. Dr Edwards indicated that there was no evidence of any residual respiratory defect as a result of the earlier embolism. It is noted that the applicant has not had any further pulmonary embolism since 1982.
The only other medical report included in the T documents was that forwarded by his General Medical Practitioner, Dr M. Williams and dated 14 April 1999 (T23). Dr Williams stated that the applicant had had a number of attacks of deep vein thrombosis and pulmonary embolism since his discharge from the Army. That statement was not true for the applicant had not had any episodes of pulmonary embolism since leaving the Army. Further, he had had only one episode of deep vein thrombosis since 1982 and that had followed a long drive to Cairns in 1996.
Dr Williams also said that the recurrent pulmonary emboli had resulted in significant loss of effort tolerance. That statement was in conflict with the finding of Dr Edwards that as far back as 1994 the applicant did not have any residual respiratory defect due to the earlier embolism.

Dr Williams implied that increasing disability in the left knee had resulted in increasing symptoms in the right knee but as earlier recorded, Dr Blue did not accept that possibility.
Based on those comments Dr Williams stated that the applicant was in his view totally and permanently incapacitated. That opinion was in conflict with all the medical specialist advice, with the possible exception of Dr Kerr.
Finally, it should be noted that in seeking assessment from the vascular surgeons and orthopaedic surgeons, the Comsuper documents had requested that separate incapacity percentage assessments for each of the employment categories of 1. Plant Operator 2. Labourer 3. Cleaner 4. Storeman and 5.Driver be provided as well as an overall assessment. It was requested that the assessments be expressed either as a percentage or in the following equivalent terms:

Minimal - less than 10%
Small - 10% to less than 30%
Moderate - 30% to less than 60%
Large - 60% to less than 100%
Total - 100%

applicant's submissions

The applicant submitted that his condition has deteriorated and sought to rely on Dr Magee's assessment of 60% (T36). He submitted that the respondent should take into account his age and the difficulties he has had securing work and noted his inability to do any heavy work.
respondent's submissions
Mr Whithear submitted, on behalf of the respondent, that Dr Williams' evidence was based upon incorrect assumptions and was flawed in comparison to Drs Blue and Sowby.
He submitted that on the balance of the evidence, the applicant could do most of the work of a plant operator, most of the work of a storeman and most of the work of a cleaner, barring heavy work or that involving squatting or climbing.
He submitted that the combination of the knee problem and the thrombosis gave the applicant a global assessment of around 50% for the purposes of the legislation and that the applicant had not quite reached the Class A range, although if his knees worsen in the future he may well do so. He submitted that the real problem was that the applicant had been retrenched, although conceded that given the applicant's medical history, he did not have good employment prospects.
discussion and findings
This matter essentially involves a value judged by the Tribunal as to the applicant's incapacity rating pursuant to s.36 of the Act, taking into account the factors outlined at sub-ss.36(1A)(a)-(d). As to sub-ss.36(1A)(a) and (b) of the Act, the Tribunal notes that the applicant is qualified and has the experience to undertake work as a plant operator, cleaner, storeman and a driver. The two factors weighing most heavily against the applicant finding employment in these fields are his age and medical problems, the latter of which is relevant to sub-s.36(1A)(c) of (1A) in so far as his "prescribed impairments" are concerned. With that in mind, the Tribunal turns to consider the medical assessments before it as to incapacity.
The initial classification by the delegate in 1983 was 60% Class A on the basis that the capacity of the applicant to undertake the types of employment listed earlier was then impaired to a large degree. When reviewed in 1987 it was stated that there was a total incapacity to work as a plant operator or labourer. Having regard to the medical evidence at this point in time, it is clear that if the original assessment had been correct, then the applicant has significantly improved since that time. This would suggest that the appropriate percentage impairment is now less than 60%.
In 1983, only a short period had elapsed since the pulmonary embolic and deep venous thrombosis episodes and the assessments provided for a belief that the applicant had residual disability from the embolic episodes and that because of the then recent history he was at high risk of repeat episodes. By 1994 however Dr Edwards was able to state that the applicant had recovered well from the earlier pulmonary embolism and that there was no evidence of residual respiratory defects. In relation to deep venous thrombosis, the applicant had no further episodes for a period of 14 years until a thrombosis was precipitated by a long car drive to Cairns. He has had no further thrombosis since 1996.
At the time of his initial classification, the condition constituting the physical impairment that caused retirement was recorded as:
(a)Recurrent deep vein thrombosis and pulmonary emboli
(b)Unstable left knee

These are the "prescribed impairments" for the purpose of sub-section 34(1A) of the Act. The current assessment of incapacity for the listed job categories must therefore be made in relation to these conditions alone and/or to any other physical or mental impairment causally connected with these conditions.

The Tribunal finds that there is no other physical or mental impairment causally related which would need to be included in the overall assessment. The only claim in this regard had related to an aggravation of the right knee symptoms because of the left knee impairment. The applicant had believed this to be so and he would appear to have received some support from his general medical practitioner in this regard. That belief was not accepted by Dr Blue and, having regard to his superior expertise in the field of orthopaedics, the Tribunal accepts the opinion of Dr Blue.
In relation to the pulmonary emboli, all the specialist evidence indicated that the applicant had made a good recovery and that there was now no evidence of any residual effects from the earlier emboli.
Turning to the prescribed impairments in relation to the deep venous thrombosis, Dr Magee had indicated that the applicant could gain improved comfort with the use of a support stocking and that he would attribute disability due to the vascular side alone at a maximum of 30%. He agreed that, although he had quoted an overall assessment of 60% disability due to both the knees and the legs, that an orthopaedic surgeon would be better placed to make an assessment. The Tribunal has therefore taken into consideration the opinion of Dr Magee only in relation to the vascular problem and in the circumstances, his 60% overall assessment has been disregarded.
Dr Mellick had initially seen the applicant in 1986. At that time he opined that the applicant would not be able to function as a plant operator on a full-time basis. When reviewed in 1994 he said that, in his opinion, the condition of the applicant had not changed much but at that time he felt that the applicant could work as a plant operator full-time. This would suggest that the condition of the applicant had in fact improved between 1986 and 1994.
In 1993 Dr Sapsford had assessed the degree of incapacity due to vascular disease as small – less than 30%. Although the applicant did experience a further deep vein thrombosis in 1996, subsequent to the reviews by Dr Mellick and Dr Sapsford, the clots in 1996 had been in the outer part of the leg and as Dr Magee has referred to a maximum disability of 30% in 1999, it would not appear that there has been any significant deterioration since 1993 as far as the vascular aspect of the left leg is concerned. This is in spite of the fact that the applicant did not follow the advice of all vascular surgeons that the discomfort in the leg would be reduced by the use of a stocking and that the use of a stocking would reduce the risk of complications due to the earlier thrombosis. It would seem logical that if the applicant were experiencing increasing discomfort in the leg due to the vascular component, that he would use a stocking. It is noted that in his evidence, he gave as the reasons for not wearing a stocking that his general practitioner had told him that he did not feel that the stocking would help. In the presence of significant discomfort it is difficult to understand why he would ignore the advice of all three vascular specialists.
As far as the degree of incapacity due to the earlier thrombotic and embolic vascular episodes are concerned, the Tribunal therefore assesses that incapacity at no more than 30%.
In assessing the disability due to the knee problem, as already stated, only the left knee is to be considered as the right knee was not symptomatic at the time of retirement and was not a cause of physical incapacity at the time.
The most recent orthopaedic assessment was that made by Dr Blue following his examination in May 1999. If his assessment is related to the guidelines provided by Comsuper, then he regarded the applicant as being less than 10% incapacitated as a plant operator; 30% to less than 60% as a labourer; 10% to less than 30% as a cleaner; less than 10% as a storeman and less than 10% as a driver. That assessment of Dr Blue was not disputed. In fact the applicant told Dr Blue that he was happy with the report that he had provided. The Tribunal therefore accepts the opinion of Dr Blue in relation to the level of the orthopaedic disability.
Dr Sowby as a specialist in Occupational Medicine is perhaps better placed in relating the disabilities to their significance in the work environment and the Tribunal accepts that Dr Sowby does have special expertise in this area. Dr Sowby had assessed the impairment in relation to the venous thrombosis and earlier pulmonary embolism as minimal for plant operator, labourer, cleaner and storeman. Thus in percentage terms, that incapacity would equate to less than 10%.
In making an assessment in relation to the orthopaedic condition, Dr Sowby had included the effects of both knees, but in the course of his evidence-in-chief, he said that his assessment would not be substantially changed by exclusion of the right knee. His assessment had equated to a disability of 10% to less than 30% for plant operator, 30% to less than 60% for labourer, 10% to 30% for cleaner and 10% to less than 60% for storeman. Dr Sowby did not indicate any assessment for driver.
During his evidence-in-chief, Dr Sowby told Mr Whithear that he would bow to Dr Blue on orthopaedic matters. Apart from the storeman position however, the assessments made by Dr Sowby did not differ significantly from those provided by Dr Blue. In the case of storeman, Dr Sowby had changed from his written assessment of moderate, to the range of small to moderate, when questioned by Mr Whithear during his evidence-in-chief, and stated that the overall impairment was moderate.
In relation to the report provided by Dr Williams, it is clear that that report was provided for a specific purpose. As already indicated, it contained a number of inaccuracies on which his opinion was based. In the circumstances the Tribunal does not attach any weight to his expressed opinion.
Similarly the report of Dr Kerr clearly indicates that the reason he had been requested to provide a report was to support a request for a superannuation payout. That report was lacking the necessary detail to support his conclusions and the Tribunal finds the report of Dr Kerr to be unhelpful in relation to the questions currently before it.
The Tribunal must consider the medical evidence relating to the prescribed impairments taking into account the kinds of civil employment the applicant might reasonably undertake as required by sub-s.34(1A)(c) of the Act. The kinds of employment in this case can reasonably be said to be the types of employment he has previously been trained for and has in fact undertaken. This includes the jobs outlined at paragraph 38 herein, being plant operator, cleaner, driver and storeman.
The applicant has disability due to the previous vascular condition and the left knee condition which, when taken into consideration, make it not entirely appropriate to add all the percentages of impairment in the case of all the relevant occupations, given that the scope of the legislation is limited to prescribed impairments. As a plant operator, it would seem appropriate to assess the total percentage disability in terms of the dominant disability but even adding the relevant percentages of Dr Blue and Dr Magee, a total of 60% would not be reached nor would a total percentage of 60% be reached by adding the assessing percentages of Dr Sowby and Dr Magee. The position of plant operator is a relevant type of employment for the applicant on the basis of his previous training and experience.
The positions of cleaner, storeman and driver have been previously undertaken by the applicant and again the combination of percentage impairments as assessed by Dr Blue and Dr Magee do not total 60%. These occupations include the main occupations in which the applicant has been involved since his time in the Army and in some cases relate to duties when had had been in the Army.
No evidence was provided either during the course of the hearing or in the previous assessments to suggest that the total disability would in fact be greater than the combination of the assessed disabilities as outlined above. Perhaps in the case of some types of labouring it would be appropriate to at least add the two percentages but employment as a labourer or engagement in duties of that type has not featured strongly in the applicant's previous jobs. The physical requirements of work as a labourer can vary widely in any event.
On the evidence before the Tribunal, the applicant has undertaken work in the past, to which labouring type work has not been the predominant component. It has all been work involving varying degrees of physical exertion. The Tribunal accepts that the applicant would have difficulty with the 'hard labour' aspects of any job, but on the medical evidence, it is apparent that he would be capable of performing many of the required duties of the jobs he has previously undertaken.
The Tribunal is in the position whereby it must assess incapacity only in respect of the 'prescribed' conditions. This means that disability from previous conditions and the applicant's age cannot be considered as 'impairments', even though these factors do significantly impair his employment prospects in reality. This limited assessment results in an artificial representation of the applicant's actual overall incapacity for work. The Tribunal, however, is bound by the legislative provisions, the intent of which is to limit consideration to prescribed impairments.
For the applicant to reach a disability of 60% impairment, the incapacity assessment according to the guidelines provided to the various specialists would need to equate to a large incapacity for the relevant types of employment. No medical assessment provided had stated incapacity for any of the listed occupations to be large.
Having carefully considered the relevant types of civil employment as proposed and the disability assessments by the relevant specialists, the Tribunal finds that the degree of disability does not at present reach the level of 60%. The Tribunal is sympathetic to the position the applicant finds himself in. However, it must pay due regard to the medical assessments and make a 'value judgement' as at the present time. It may well be the case that the applicant continues to deteriorate, and if that happens it would be appropriate for the respondent to reconsider the applicant's case in the future. At the present time however, for the reasons given, the decision to maintain the classification at 50% Class B is affirmed.
decision
For the reasons given above, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous, Miss A.M. Brennan (Member) and Dr K.P. Kennedy (Member)
Signed:         ............(Signed).................................................................
  J. Coulthard - Personal Assistant
Date/s of Hearing  25 January 2000
Date of Decision  9 March 2000
Counsel for the Applicant        In person
Solicitor for Applicant               -
Counsel for the Respondent    Mr R. Whithear
Solicitor for the Respondent    ComSuper - Legal Services Section