Lord and Defence Force Retirements and Death Benefit
[2003] AATA 1215
•4 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1215
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/473
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID LORD Applicant
And
DEFENCE FORCE RETIREMENTS AND DEATH BENEFIT
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date4 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) R G Kenny
Member
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – benefits and entitlements - invalidity benefit – prescribed impairment - percentage of incapacity in relation to civil employment – whether reclassification applicable
Defence Force Retirement and Death Benefits Act 1973 ss 3, 30, 34, 99
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Freeman v Defence Force Retirements and Death Benefits Authority (1985) 5 AAR 156
McGovern v Defence Force Retirements and Death Benefits Authority (1988) 16 ALD 791
Re X and Defence Force Retirements and Death Benefits Authority (1980) 3 ALN N37
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
REASONS FOR DECISION
4 December 2003 Mr R G Kenny, Member Background
1. David Lord (the applicant) was born on 2 April 1957. He served in the Australian Army from 1976 to 1982 and from 30 April 1984 to 29 April 1989. He was discharged on the ground of invalidity due to cervical disc lesion, neurological deficit upper limbs, lumbar disc lesion and tinnitus. On 23 February 1990, he was given a classification of 40% Class B in respect of those conditions, by a Committee of Alternates on behalf of the Defence Force Retirement and Death Benefits Authority (the Authority and the respondent), in accordance with section 30 of the Defence Retirement and Death Benefits Act 1973 (the DFRDB Act). Since that time, his classification was varied on 2 November 1990 to 80% Class A with effect from 4 October 1989, on 20 June 1995 to 10% Class C with effect from 21 July 1995 and, on 11 October 1996, to 50% Class B with effect from 21 July 1995.
2. On 1 May 2001, the Authority varied the applicant’s degree of incapacity to 30% but retained his classification as Class B with effect from that date. On 9 May 2002, the Authority varied that decision by restoring his degree of incapacity to 50% and retaining his classification as Class B. This was done on the basis that the prescribed impairments were cervical disc lesion, neurological deficit upper limbs, lumbar disc lesion, tinnitus, cervical spondylosis and chronic adjustment disorder. On 29 May 2002, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) in accordance with sub-section 99(6) of the DFRDB Act.
3. At the hearing, the applicant was represented by Ms B Carter-Nicoll of Counsel and the respondent was represented by Mr B Dubé from the Australian Government Solicitor’s Office.
4. At the hearing, the following materials were taken into evidence:
Exhibit 1the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents T1–T169);
Exhibit 2annexures to the document T100; and
Exhibit 3clinical notes for the period 8 November 1999 to 7 February 2000 by psychologist Nicole Bullen.
Issues and Legislation
5. The applicant is in receipt of invalidity payments in accordance with the DFRDB Act and the issue for determination by the Tribunal is the percentage of incapacity and the appropriate reclassification applicable to him in accordance with section 34 of the DFRDB Act. That provision and the initial classification provision, that is section 30 of the DFRDB Act, read:
“30 Classification in respect of incapacity
(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.
(3) Where the invalidity pay of a person is cancelled under subsection 62(1), any classification of the person under subsection (1) ceases to have effect.
…
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; …
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 … 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.
(4) If, upon the reclassification of a recipient member as Class C, he would, but for this subsection, be entitled to benefit in accordance with subsection 32(2), he is entitled to that benefit only to the extent that the amount of that benefit exceeds the sum of the payments of invalidity pay received by him.
(5) In this section, recipient member means a member of the scheme who is entitled to invalidity pay and includes a member of the scheme who:
(a)is classified as Class C by reason of having been reclassified (whether before or after the commencement of this subsection) under subsection (1); and
(b)is not, after being so reclassified, entitled to invalidity pay;
but does not include a member of the scheme who is retired after the commencement of this subsection and, on his retirement, is classified as Class C under section 30.”
Applicant’s Evidence
6. The applicant told the Tribunal that when he began his second period of Army service in 1984, he was classified as being “FE”, which is the highest fitness classification available. He said that, during his service, he fell from an armoured communication vehicle in early 1986 and that subsequently, on 17 September 1986 on his way home from work, he had a motor vehicle accident. He said that his injuries led to his being down-graded from 4 December 1986 with a further down-grading on 24 August 1988 and then to his being declared medically unfit on 25 October 1988 and to being medically discharged from the Army in 1989. He said that, after he was discharged from the Army, the restrictions placed on him by his medical conditions meant that he was not able to work.
7. The applicant said that he underwent surgery to his cervical spine in June 1990. He was referred to a statement that he completed on 15 March 1991 and he confirmed that he was, at that time, suffering from the conditions listed therein which were cervical spondylosis with radiculopathy, recurrent right ankle strain, bilateral chondromalacia patellae, tinnitus, bilateral rotator cuff lesions, cluster headaches/ migraine, L4/S1 disc lesion and psychogenic spine pain. He said that all of those conditions were related to events that occurred in his service life. He said that he had always wanted to return to the work-force and had attempted to involve himself in the use of a computer by completing a course in that regard. However, he said that he had never acquired high skills and that, in any event, he has major problems sitting in front of a monitor for more than 10 minutes because of pain. He said his condition has continued to worsen over the years and that he was currently taking the following medications:
MS contin 100 mg
erogodryl mono 1 mg
diazepam 5 mg
surgam 300 mg
euhypnos 10 mg
sudafed 60 mg
panamax 500 mg
maxolon 10 mg
colofac 135 mg
somac 40 mg
imigran 50 mg
imodium 2 mg
cephalexin 500 mg
temaze 10 mg
8. The applicant also said that he takes medication for anger management in the form of avanz and mirtazon and that the effects of these various forms of medication make him drowsy and would significantly impact upon his ability to work. In particular, he said this was because of the morphine that he ingested. He said it also had caused severe short-term memory loss.
9. The applicant said that, before he joined the Army in 1976, he had worked for 9½ months as an apprentice mechanic, 9 months in sales with Grace Brothers, 9 months as a labourer for a carpenter, 8 months as a wire straightener, 12 months as a pre-delivery mechanic and 8 months as a truck driver. He described the wire straightening work as rolling out wire for use in making such things as refrigerator shelves. He said that, during his Army service, he had taken various courses in bush phases, parade ground skills, military discipline and the law as well as a welding course and had served in the capacity of a keyboard operator and a radio operator. He said that he gained experience in signals, radio operations, keying and driving. After leaving the Army in 1982, he completed 9 months as a fencing contractor, 2 months as a security guard, a period as a kitchen hand and then as a labourer for a painter until he rejoined the Army. In his second period of service, he worked in signals and had experience in report writing, word processing, data entry and driving. He confirmed that he had driven both normal and track vehicles but that he had not been involved in welding work in the Army. He said that, since his discharge in 1989, he had not been in paid employment although he had undertaken some volunteer work with a sporting club in that he was a standby referee for junior football teams. He said that he was the assistant school coach for school sports and was the secretary of the Burpengary Junior Rugby League Club in which capacity he attempts to prepare documents such as letters but is not able to finish them. He said that this is done by his wife. He said that he had been involved as secretary of the football club since the early 1990s and that it involved him in taking minutes, reading minutes and advising the meeting of incoming and outgoing mail.
10. The applicant said that he owned some building equipment including a compressor, various saws and tools such as a nail gun and that he would lend these to his friends from time to time and go to their work sites to ensure they were using them properly. He said that, in 1995, he had tried some concreting and labouring work but had not been able to sustain it. He denied that he was involved in working and confirmed that he was only involved in ensuring that his tools were properly utilised. He was referred to a reference by Dr Elder to his having dirty hands but he denied that this meant that he had been working and he said that he had a blood blister and retained some small calluses on his hands even though he was no longer working.
11. The applicant said that he lived on a property of 1¼ acres but that it is structured in the low maintenance form and that his children look after it.
12. The applicant confirmed that he does experience some symptoms from conditions other than those for which he receives his invalidity payments and that these related to his knees, ankles and stomach. He said that he has migraines but that these began before the motor vehicle accident.
Medical Evidence
Dr M J Nathar, Consultant Psychiatrist
13. Dr Nathar saw the applicant on 30 January 2002 and completed a report, dated 2 February 2002, where he said:
“MENTAL STATE EXAMINATION:
Mr Lord presented as a man of average weight, who was bearded, wore spectacles and had a somewhat flattened affect. He was somewhat hard of hearing. In the course of the 50-minute interview he stood up once, halfway through. He wore knee braces and used a walking stick on the right hand side and limped. Overall his mood was quite flat with little variation during the interview. He had good concentration and memory function and there were no psychotic features. His intelligence would be regarded as normal.
OPINION AND CONCLUSION:
In answer to your specific questions:
1. Your opinion as to whether “Cervical Disc Lesion – Neurological Deficit Upper Arms, Lumbar Disc Lesion, Tinnitus, Cervical Spondylosis with Radiculopathy and Chronic Pain Syndrome” is an adequate description of Mr Lord’s prescribed impairment.
I believe that the cervical disc lesion/neurological deficit upper arms, lumbar disc lesion, tinnitus, cervical spondylosis with radiculopathy and chronic pain syndrome would adequately describe Mr Lord’s impairment.
However, I believe that it would be reasonable to add another psychiatric diagnosis, namely that of a Chronic Adjustment Disorder with Anxious and Depressed Mood to his list of disorders and impairment. I am satisfied on the basis of the examination that he does have clinically significant chronic anxiety and depression associated with his physical problems. In fact the anxiety and depression would influence his chronic pain syndrome and would be the responsible psychological factor as part of the chronic pain syndrome.
2. Comments on Mr Lord’s incapacity – ie the nature and extent to which Mr Lord’s impairment would restrict his capacity to do any physical and/or mental functions specifically associated with the duties of the kinds of employment listed.
I will not comment upon his physical incapacity, which is outside my area of expertise.
Looking at his psychiatric problems, namely a combination of the psychological component of the chronic pain syndrome as well as the underlying chronic anxiety and depression as part of his adjustment disorder, I believe that the psychiatric impairment would also add to some psychiatric incapacity, but I believe at a minor level affecting various employment. For example, there is ongoing anxiety and therefore noise intolerance, memory and concentration difficulty particularly if there is pain exacerbation, moodiness and irritability, that would be associated with some partial psychiatric incapacity.
When I look at the list of occupations you have asked me to take into account, then I wish to make the following comments.
Clerk – there would be quite moderate psychiatric incapacity associated with working as a clerk because of the required concentration and stress coping mechanism, the memory function required for this job. If he has to bend over a desk or do computer work and concentrate for a significant length of time, and pain is exacerbated then psychiatric function would become even more compromised.
Labourer – I think here the main incapacity would be his physical one and there would be minimal psychiatric incapacity preventing him from working as a labourer.
Communications operator – Here again there would be a moderate psychiatric incapacity due to the demands of his work as a communications operator much like the problem he would face as a clerk.
Driver – He would have difficulty due to psychiatric problems to a minor extent.
Welder – He would also have mild to moderate difficulty to concentrate in a welding job. The physical demands would increase his pain perception and also adversely affect his psychiatric incapacity.
3. An assessment of the extent to which Mr Lord’s capacity to undertake each kind of employment has been diminished by the listed impairment and an overall assessment which assumes an equal weighting for each kind of employment.
Looking at it merely from a psychiatric viewpoint but, of course, taking into account his physical problems affecting the psychiatric impairment and incapacity, he would be regarded as having a percentage impairment in the mild degree, around 20% impairment.
4. Comments on whether the impairment is likely to improve or deteriorate to such an extent as to significantly alter Mr Lord’s capacity for employment, and your opinion as to when Mr Lord’s classification should be reviewed to take into account this change.
The above impairment is not likely to improve as his psychiatric state is of such a chronicity, and only partial response to psychiatric treatment has been achieved. No significant improvement is therefore likely.
ADDITIONAL COMMENTS:
The adjustment disorder is an additional impairment.
You have asked for a separate comment as to the additional impairment arising from the adjustment disorder. Perhaps without the adjustment disorder then the psychiatric component of his impairment, namely that of the chronic pain syndrome would account for 10% of an overall impairment as assessed in No 3 above. Therefore there is an additional 10% due to the adjustment disorder.”
14. In his evidence, Dr Nathar said that morphine is a strong analgesic which is used for pain relief and said that a recipient is still able to function reasonably well although he conceded that some people have difficulty with concentration and memory when taking it. He said that diazepam was used for anxiety relief, that it can produce muscular spasms and that a person taking the drug might also take a muscle relaxant. He said euhypnos was used for assistance in sleeping and that it would not have any ramifications for daily functioning. He said that some of the medication that the applicant took was for depression and that this can also have the effect of blocking chronic pain symptoms. He described erogodryl mono as being utilised for migraine relief and maxolon as being an anti-nausea medication which was frequently prescribed for those who took morphine to overcome some of its side-effects. He said that sudafed was for mucous control, that andep was an anti-depressant which could also be utilised for anger control and that another drug used for that purpose was neulacti.
15. Dr Nathar was referred to the list of medications that the applicant said that he takes and he expressed the opinion that, if all of those were taken, it would provide some diminution of his ability to cope in some situations. He said that there was likely to be a loss of concentration and perhaps memory but that this depended entirely on the individual, the time of day, the dosage and the kind of task being undertaken. In relation to the ability to operate a motor vehicle, he said that, again, it would vary with the individual and that only the person taking the medication was in a position to tell whether they were capable of driving. He said that his advice to a patient would be that if they felt they had a problem, they should not drive. He said that he would not be surprised if the applicant was affected by the levels of medication he took but he said that this was a matter for each individual because some people taking that mix of medication would be badly affected while others would cope quite well. He said that the 20% impairment allocation that he had made in his report related to pain disorder, adjustment disorder and also the medications that he was taking.
16. Dr Nathar said that, if a person suffers chronic pain and then develops an adjustment disorder, the depression associated with that would make the person less capable of coping with the pain so that the effect of the pain would be increased by the anxiety and depressive feelings. He said that one would feed the other.
17. In cross-examination, Dr Nathar said that chronic pain was frequently associated with depressive disorder and that, once it lasted for more than six months, it was described as chronic. He said that anger control problems were often associated with depression and that depressed people can suffer mood swings from anger to lethargy.
18. Dr Nathar agreed that it was common for a person with a pain disorder to suffer from an adjustment disorder and that this would present itself with feelings of anxiety and depression, with expressions of anger and be socially withdrawn. He said that the chronic pain can in fact cause the adjustment disorder as a reaction to the pain stressor. He said that pain disorder described a level of pain that is not explained by any physical cause and where a person may have a physical disability but their description of pain is greater than what one would expect from a particular injury. He said that the additional pain can be attributed to a pain disorder.
Dr Peter Stevenson, Consultant Physician
19. Dr Stevenson saw the applicant on 23 October 1995 and completed a report on 2 November 1995 where he gave the following assessment:
“I would estimate the degree to which the cervical disc lesion affects MrLord’s capacity to occupy a clerical position as small (10%). There is no evidence of ongoing substantial neurological defect in the upper limbs and clerical duties can generally be undertaken without great difficulty by persons who have undergone cervical fusion. Mr Lord may be more substantially affected from performing the duties of a labourer as a result of the causally connected psychological reaction rather than to the effects of the neck injury itself. Mr Lord has been undertaking labouring duties latterly, and says that he was exhausted afterwards. A deal of this would be secondary to deconditioning and I would therefore estimate his overall incapacity as a labourer as moderate (50%). His incapacity as a communications operator would be small (10%).
In respect of the lumbar disc lesion, incapacity as a clerk would be small (10%), as a labourer large (60%) and as a communications operator small (10%).
I would accept and confirm Dr Parker’s opinion that the effect of Mr Lord’s tinnitus on his ability to work as a clerk, labourer and/or communications operator is minimal.
I would consider that there may be a causally connected moiety of psychological pain affecting the cervical disc and the lumbar disc lesion.
I note also that Mr Lord suffers from bilateral rotator cuff tendonitis. He has a reasonable range of movement in both arms at the present time but he spent ten years in the Army undertaking physical exercise and heavy lifting (ie radios and packs) so that he would appear to have at least a reasonable prima facie case that his rotator cuff problems may have been contributed to by the Service. However, I gather that this has been critically reviewed.
I consider that Mr Lord has an overall incapacity assessed as moderate (45%).”
20. Elsewhere in his report, Dr Stevenson referred to the applicant as showing “recent work-staining” on both of his hands and he recorded that the applicant had said that he had been attempting concreting and digging which he had apparently done for “a couple of days but became exhausted afterwards”. He said that work-staining could be chronic or acute with the former demonstrated by such things as the presence of calluses on the hands and the latter by traces of material such as oil or dirt. He said that he was not sure if the applicant had calluses or not as he had not recorded any such information in his report.
21. Dr Stevenson also made the following comment:
“I would comment also briefly on the issue of non-organic signs and the possibility of a psychological origin of Mr Lord’s pain. Clinical examination of Mr Lord today did demonstrate some non-organic features. These features were not dramatic and Mr Lord appeared somewhat more relaxed than perhaps at the time of examination by Dr Schaeffer. He himself appears to be in agreement with the idea that some of his pain is psychologically based. Although non-organic signs are generally readily agreed on, the presence of non-organic signs does not clearly discriminate whether the presentation is based on shallow financial or deeper emotional motives, or some mixture of the two.”
22. In his oral evidence, Dr Stevenson said that he believed the applicant to be moderately incapacitated when he saw him in 1995 and that there would need to be evidence of deterioration for that to be increased as at May 2001. He said this could be due to some trauma or to general degeneration. Dr Stevenson said that he had seen reports prepared by Dr Elder, Dr Scott and Dr Kahler. He said that, if the applicant had undergone fusion to his cervical spine then, in the event the surgery was successful, he would expect the incapacity of the applicant to have decreased.
23. In relation to his reference to non-organic signs in the applicant, he said that this is a feature of illness behaviour where the limits of movements that a person is able to perform are not proportionate to the present pathology. He said it could be due to a psychological illness or to exaggeration. Dr Stevenson said that, when he assessed the applicant’s incapacity, he took into account the psychological component. He said that he assessed together the physical limitations and the illness behaviour and that he did not see any major inconsistencies in the applicant’s movement range and did not consider him to be exaggerating his pain symptoms. Dr Stevenson said that he had asked the applicant what medication he was taking and that he had recorded surgam, codral, doloxene, prothiaden, vallium and sleeping tablets. When advised of the list of medications that the applicant claimed currently to be taking, he said that it was inappropriate for those to be taken together because many of them overlapped in their functions and that some would counteract the effects of others. He said that he should be taken off many of those medications because there could be cumulative side effects and that these would have a sickening effect on most people.
24. He said that his overall assessment took into account physical limitations and the effects of pain but he had no psychiatric diagnosis of the condition at the time.
Dr H Schaeffer, Neurosurgeon
25. Dr Schaeffer saw the applicant on 9 May 1995 and prepared a report, dated 24 May 1995 where he said:
“I would have to say that I found this to be a bizarre presentation with inconsistent, diffuse and non-anatomical features. I have formed the view that he presents the picture of ‘abnormal illness behaviour’. I should point out that by abnormal illness behaviour I mean a very exaggerated response to injury. This diagnosis frequently includes the existence of voluntary aspects.”
His report continued:
“I shall now turn more specifically to the matter which you require to be addressed:
In this regard I point out that although he is likely to have experienced some symptoms of soft tissue strain of temporary duration in the early stages and although there must have been some temporary iatrogenic symptoms relating to the discogram, there is on the other hand no evidence to suggest that his residual condition is of a significant nature.
For example, in my opinion, there is no good evidence to suggest that he suffers from the consequences of any true cervical or lumbar disc lesion and I do not believe that he suffers any significant neurological deficit affecting his upper limbs. I have also not observed any evidence to suggest that he suffers any disability or incapacity as a consequence of a condition of tinnitus. I accept at the same time that tinnitus is a symptom which is usually evaluated by otologist. Tinnitus is a frequently occurring non-physical feature in circumstances such as this.
In spite of the existence of spinal fusion in the mid cervical region, I point out that there is no reason why his cervical mobility should not remain adequate considering the fact that, anatomically speaking, the major degree of spinal movement takes place at the joint between the occipital bone and the atlas and the atlas and the axis. There is no impediment to movement at these joints.
It is also my opinion that, in spite of his allegations to the contrary, he retains the capacity to bend and lift weights from floor level, work above shoulder level and work at heights and near moving machinery.
In respect of all the impairments mentioned in the correspondence, I am of the view that the existence of any impairment at all is questionable. If it is necessary to fit them into one of the categories mentioned, the category entitled ‘minimal’ is the only one that can be contemplated.
There was a causally connected impairment in this case, I have already mentioned this. It consists of the fact that he suffered a condition of discitis following on the discogram, but I believe that the consequences of that causally connected impairment are likely to have ceased before now.
Finally, with regard to the question of classification relating to retirement on medical grounds, I must again point out that on account of the substantially factitious nature of his presentation, the question arises as to whether he fits into any category at all. Clearly, Class C is the only one that merits any consideration at all.
In summary therefore in spite of his long standing allegations of severe disability and in spite of the amount of treatment that he has undergone, I have been unable to discover evidence of loss of fitness to do work as a labourer and communications operator.”
26. In his evidence, Dr Schaeffer confirmed that the applicant had demonstrated minimal incapacity.. He said that, in order for there to have been an increase between the time when he saw him and 2001, there would need to be some neurological signs such as the loss of sensation in the applicant’s arms and legs in order for the incapacity to have increased. This would also be the case if there was evidence of damage to nerve roots in the spine. He said that he did not agree with much of the treatment that the applicant had undergone but said that the fact that he had undergone surgery could mean that there was a loss of capacity for work.
27. In relation to his physical examination of the applicant, Dr Schaeffer said that he had shown inconsistent movements and had exhibited a patchy non-anatomical hypoaesthesia when sensory testing was conducted on his limbs. He said there was no loss in any specific dermatome but an overall general loss and he said that this was not able to be explained by any physical phenomenon. He said that, when assessing the applicant, he took into account only physical symptoms and not any psychological symptoms. He also said it was surprising to find someone taking as much medication as the applicant claimed to be taking and he said that these would have some side effects on him.
Dr David Elder, Consultant Occupational Physician
28. Dr Elder saw the applicant on 6 March 2001 and completed a report on 14 March 2001 where he stated:
“Head/Neck:
Examination revealed surgical scars and significant erythema ab igne from the use of a heat pack on his lower cervical spine.
Of note was the extremely bizarre behaviour and abnormal illness behaviour throughout my entire consultation with Mr Lord. The range of movement that he was demonstrating during informal examination would markedly decease (sic) to almost zero during formal examination, eg in respect of his cervical spine, during in formal examination he was able to move his neck in all planes, however, when I formally examined him, this function was essentially zero in all planes.
Upper Limbs/Shoulder Girdles:
Similarly, on examination of Mr Lord’s upper limbs and upon request that he move a muscle group or bend forward, he did so in such a bizarre manner, with cog wheel like movement, he shook significantly when asked to stand straight and muscle power was totally inconsistent, eg he was able to stand up and raise himself from a seated position, however, when I was examining his knee extensors they were almost entirely weak bilaterally and again he demonstrated bizarre cog wheel movement and significant shaking.
Mr Lord appeared to be a well muscled man. Significantly in contradiction to his vociferous statements that he did not carry out any manual activity at all, I found his hands to be dirty and both palms of his hands showed slight callus formation. Again, significantly, he had a large subungual haematoma on his left thumb.
Sensation was normal on inspection of his upper limbs.
Back/Spine:
Examination of Mr Lord’s back and spine revealed evidence of completely non-organic signs. He could forward flex to 10°, which precipitated displays of holding himself with his knees bent, shaking and almost jumping.
Waddell’s signs, specifically for non-organic overlay, were 5/5.
Lower Limbs:
Allegedly, Mr Lord could only achieve straight leg raising to 40° bilaterally and would almost jump off the couch when asked to do so and grimace with complaints of pain. However, when I asked him to sit up in order to examine his back, he easily sat himself up with legs extended in front of him with no difficulty or discomfort at all.
Reflexes were equal and he was able to walk on his heels, walk on his toes and squat. However, upon examination of his muscle groups which allow one to carry out these movements, his legs gave way to relatively light pressure.
Investigations:
No new investigations have been undertaken.
SUMMARY AND ASSESSMENT:
Mr Lord’s bizarre behaviour leads me to consider that he grossly exaggerates his symptomatology and indeed there was good objective clinical evidence today of him so doing and also evidence that he is not as inactive as he claims.
I found no evidence of any neurological deficit in Mr Lord’s upper arms and there was no clinical evidence of lumbar disc lesion. I could also find no evidence of radiculopathy that accompanies cervical spondylosis. There was no objective evidence of any disc pain or discomfort and Mr Lord appeared totally comfortable throughout my consultation with him, apart from when he was exhibiting the most extreme abnormal illness behaviour.”
Dr Elder continued:
“It is my opinion that Mr Lord certainly does have cervical disc lesion and cervical spondylosis and has had previous discitis, resulting in a natural fusion and a subsequent surgical fusion. I would therefore suggest that his ability to be a labourer or driver is largely impaired. However, I consider that his ability to be a clerk or a communications operator are minimally impaired.
An overall assessment, which assumes an equal weighting for each kind of employment, therefore places Mr Lord in the moderate (30% to less than 60%) impairment level.”
29. In his evidence, Dr Elder confirmed that the presentation of symptoms in the applicant had been bizarre in the sense that he always looks for consistency of response when examining a patient and this had not been demonstrated by the applicant. He said that he applied the Waddell test which involved five different parameters of assessment and, in the event that three out of five of those were positive, it would mean that there was some other explanation than the physical conditions for which a person suffered to explain his/her behaviour. He said that he applied the tests and the applicant achieved five out of five and that this meant that were no physical explanations for his symptoms. Dr Elder said that any physical injury can affect the way that a person feels about themselves and that, in that sense, it can affect the person psychologically although it does not necessarily have to manifest itself in a psychological illness. He said that it can be unconscious behaviour or, indeed, it could amount to clinical depression. He said it could also be that a person exaggerates the symptoms and that this is the case where there is the prospect of secondary gain. In the applicant’s case, he said that he believed there was conscious exaggeration. He also said that, in the event that the applicant had a psychiatric condition related to pain disorder, this would provide some explanation of his presentation of symptoms but he still expressed the opinion that some of this was due to the prospect of a secondary gain.
30. Dr Elder noted that the applicant had been through a surgical procedure and accepted that this would be an unlikely approach merely for secondary gain and expressed a view that not all of the additional signs that the applicant shows could be explained by exaggeration, but a significant level of them were. He said that he had taken the applicant’s medication into account when making his assessment. He conceded that the drug regime of the applicant might affect his concentration but he also said that, contrary to the applicant’s contention that he could sit for only 10 minutes, he had observed him sitting for 40 minutes. He agreed that, if it was the case that he could sit for only 10 minutes, this would affect him in carrying out the task of a clerk or a communications operator but also said that modern furniture can be tailored to the particular needs of an individual to enable them to stay in position for a longer time.
Dr Richard Kahler, Neurosurgeon
31. Dr Kahler prepared a report on 15 October 2001. He first saw the applicant in May 2001 in relation to chronic neck and arm pain. In his report, Dr Kahler said:
“My impression after his initial review was of severe cervical degenerative disease causing significant neck pain and arm pain. I referred him for an MRI scan of his cervical spine and flexion extension views of his cervical spine. The plain films of his cervical spine in flexion and extension showed forward slip of C4/5 and the MRI shows narrowing of the exiting foramen at the C4/5 level on the left associated with significant degenerative facet changes at this level. There was also compression on the theca at this level with some minor posterior displacement of the spinal cord.
Given the overall picture with the fusion block at C5/6/7 from his previous discitis and surgery I felt that he had significant degenerative changes at C4/5 with some degenerative instability with subluxation of C4 on C5. There was also compression of the C5 nerve root which would explain his weakness of shoulder abduction and pain extending over the shoulder into his upper arm.
I discussed options of management with Mr Lord. He wished to avoid any surgical intervention if possible. I therefore arranged nerve root sleeve injection at the C5 nerve root on the left. He understood this was to help his shoulder and upper limb pain but would not help his neck pain. I referred him to Dr Jim O’Callaghan for this procedure.
I reviewed Mr Lord again on the 4th September 2001. He was still having quite significant ongoing neck pain and shoulder pain. This was all exacerbated by activity. His brachialgic pain in his left arm was partially improved following his nerve sleeve injection and he was happy with the result but was after more relief. He said he had considered all option (sic) and wished to proceed to surgical fusion.
He was admitted to St Andrew’s Hospital on the 26th September 2001. He then proceeded to a C4/5 discectomy with rhizolysis of the left C5 nerve root and C4/5 fusion with interbody fusion cage and anterior Atlantis plates. Surgery proceed [sic] without any difficulties and post operatively he was gradually mobilised on the ward. He stated he has good symptomatic relief of his arm pain in the early stages. He was discharged on Tuesday 2nd October and his wound staples were removed prior to discharge. I plan to review him 6 weeks post-operatively with a repeat X-ray of his cervical spine.”
32. Dr Kahler described the applicant’s pre-operative impairment for work capacity as being large and in the order of 60% to 100% and said that the occupations of labourer, communications operator, driver and welder would be inappropriate for him and that even clerical work would be limited because of his degree of symptoms and his medication requirements. However, he also noted that, when he saw him, the applicant had only recently undergone surgery and suggested that he needed to be re-assessed after three to six months.
33. Dr Kahler said that he did not think that the applicant showed abnormal illness behaviour. He said that there was an abnormal illness pattern but that this was recognised in a person who is experiencing pain and did not mean that he was faking the pain symptoms. He said that it was unrealistic to expect the applicant to be to be able to work as a clerk or as a communications officer although he said he could do some of the activities associated with those jobs but that he would have problems doing it for a length of time and he said that there were also other problems that the applicant would have because of his medication. He said he would not be able to continue in work in either of those capacities in a structured environment even though some of the tasks associated with that work would be achievable. He said that there would be times when he would not be able to function at all.
Dr Peter Scott, Senior Consultant Surgeon
34. Dr Scott saw the applicant on 25 January 2002 and completed reports, dated 30 January 2002, 5 March 2002 and 10 March 2002. In his first report, Dr Scott outlined the history of the applicant’s conditions and noted that he underwent an operation on 26 September 2001 namely a C4-5 discectomy and rhizolysis of the left C5 nerve root, together with a C4-5 interbody fusion with cage and plates. He described his condition as not yet stabilised but said that the applicant has described some improvement, particularly with his neck and arm pain. He referred to the applicant’s medication as comprising panadol, 4 tablets a day, for pain and discomfort and valium for anti-depressant purposes. In relation to his examination, Dr Scott said:
“He walked with the aid of an elbow crutch. Both knees were in splints and he wore a lumbar belt. There was no detectable abnormality of the central nervous system. There was marked reduction in range of movements of the cervical spine in all directions. There is a well healed right anterior cervical scar and a posterior midline scar, indicating the sits for his two cervical procedures. There was a full range of movements of both shoulder joints. There was no left or right upper limb abnormality of motor power, tone, sensation, reflex activity or circulation.
There was a reduced range of movements of the lumbo-sacral spine (flexion - 40°, left and right lateral flexion and rotation - 10°) and he complained of pain at the extremes. There was no evidence of any kyphos or kyphosis or scoliosis or kyphoscoliosis.
He did complain of tenderness over the lumbo-sacral spine to the left and right of the midline posteriorly. Straight leg raising on the left and right sides to 75° from the horizontal was associated with backache but no sciatica. There was a full range of movements of all lower limb joints. In particular, there was no obvious evidence of any abnormality of the right ankle.
There was no left or right lower limb abnormality of motor power, tone, sensation, reflex activity or circulation.”
35. Dr Scott then expressed the following opinion:
“I believe the claimant is totally unfit for work, particularly as a result of his cervical intervertebral disc degenerative processes and associated chronic pain syndrome. I believe it is unlikely that the claimant will ever be fit for work in the foreseeable future.”
36. In the report, dated 5 March 2002, Dr Scott said that the conditions cervical disc lesion/neurological deficit upper-limbs and lumbar disc lesion and tinnitus were adequate to describe the applicant’s conditions. He continued:
“It is my understanding that the claimant has not worked in the civil employment field since his discharge from the Army in 1989. I did note that before taking up employment with the Australian Regular Army, as indicated in my detailed report, he worked as a truck driver, shop assistant, apprentice, mechanic and concreter and welder (grade 1) and he is unfit to take up any of these occupations.
Clearly, Mr Lord is totally unfit for work by virtue of a combination of many disabilities as have been detailed in my previous report and there has been no improvement with multiple operations and a great deal of physical therapy.
He is unable to stand for any length of time, sit for any length of time, perform any repetitive bending, heavy lifting or twisting or turning. In addition, he is unable to stand or sit with his head held flexed in any situation which requires movement from side to side.
In addition, he is unable to perform any action which requires pulling or pushing movements against resistance or any repetitive or rcefial activities.
Under these conditions, it would be extremely difficult to fit Mr Lord into the work force.
It might be possible, for discussion purposes, to suggest he might be able to take up some very light work, possibly a few hours a day, two or three days per week, such as light clerical work enabling him to stand or sit as he pleased from time to time but I am uncertain as to whether he is qualified to take up such activities.”
37. In his final report, dated 10 March 2002, Dr Scott said:
“…claimant has the following percentage diminished ability to perform the following jobs:
a. clerk - 30% to less than 60%.
b. labourer - 60% to 100%.
c. communications officer (? radio, telephone) - 30% to less than 60%.
d. driver - 60% to 100%
e. welder - 60% to 100%.”
38. In his oral evidence, Dr Scott confirmed that the applicant would have difficulty finding employment but said that his problem related to a mixture of organic and non-organic factors. He said that his physical problems would prevent him from doing work as a labourer, driver or a welder and that his spinal conditions would make it very difficult to undertake employment as a clerk because of the difficulties associated with sitting at a desk for a period.
39. Dr Scott, while conceding that he was not a psychiatrist, said that he believed that the applicant had a chronic pain syndrome which was an abnormal pain response although he said that he was not able to say whether this was consciously demonstrated by the applicant or not. He said that he had read the report of Dr Schaeffer and agreed that the presentation of symptoms by the applicant was out of proportion to his physical disabilities. He also said that a person with chronic pain syndrome may be unwilling to subject himself to degrees of movement range that would be otherwise achievable.
Submissions
40. Both Ms Carter-Nicoll and Mr Dubé conceded that the relevant conditions to be considered and the kinds of civil employment that the applicant might reasonably undertake and which were consistent with his vocational, trade and professional skills, qualifications and experience were those considered in the reviewable decision. The conditions were cervical disc lesion, neurological deficit upper limbs, lumbar disc lesion, tinnitus, cervical spondylosis and chronic adjustment disorder and the employment was that of a clerk, labourer, radio dispatcher and driver.
41. Ms Carter-Nicoll submitted that, in assessing the applicant’s capacity to undertake work, regard should be had to the limitations imposed upon him by the various types of medications that he took for his conditions. She submitted that reliance should be placed on the opinion of Dr Scott which would allocate an overall diminishment in employment capacity at the level of at least 60%. She submitted that reliance should not be placed on the evidence of Dr Schaeffer or Dr Elder because they did not give sufficient weight to the psychiatric aspects of the applicant’s presentation of symptoms. She referred to the evidence of Dr Stevenson who considered that the applicant had not been exaggerating his symptoms. She also referred to the evidence of Dr Kahler which was to the same effect and to his opinion that the applicant was impaired to the level of at least 60% and that it was unrealistic to expect that he would be able to undertake physical work or even sedentary work which required long periods of sitting at a desk.
42. Mr Dubé submitted that the medical evidence showed that the physical limitations imposed on the applicant were well below the level required for a Class A classification under the DFRDB Act. He referred to the summary by Dr Stevenson that overall incapacity was moderate at the level of 45% and he submitted that Dr Stevenson had included in his analysis the applicant’s psychiatric as well as his physical conditions. Mr Dubé also submitted that reliance should be placed on the evidence of Dr Schaeffer who described minimal incapacity. He submitted that, while Dr Stevenson and Dr Schaeffer had seen the applicant in 1995, there was no evidence of deterioration in the applicant since he was seen by them. Mr Dubé also submitted that there was significance that the evidence of Dr Schaeffer and of Dr Elder was that the applicant’s symptoms did not match the conditions from which he suffered. He referred to the description by Dr Elder of moderate incapacity in the range 30% to 60% and submitted that this assessment had taken into account the impact of medication on the applicant. He referred to the evidence of Dr Nathar and submitted that any impairment for a psychiatric condition should be considered in conjunction with the physical impairment as they were inter-related.
43. In relation to the evidence of Dr Kahler, Mr Dubé submitted that he had taken into account matters beyond those required by section 34 of the DFRDB Act in that he had had regard to whether or not an employer would be likely to give the applicant work rather than whether he could reasonably undertake work. In relation to the evidence of Dr Scott, he referred to his agreement with the report of Dr Schaeffer about the presentation of symptoms which were not consistent with his medical conditions.
44. Mr Dubé also submitted that there were inconsistencies in the applicant’s case. In particular, this related to whether the applicant had been engaged in any work. He referred to the comments in the medical reports of Dr Stevenson and Dr Elder to the presence of “work-staining” and “dirty” hands and to the clinical note by psychologist Nicole Bullen (exhibit 3) that the applicant had reported, on 3 February 2000, that he had been “working with a mate handling tools for 2/12 and felt much better”. He submitted that this was in contrast to his evidence that he was not engaged in any work and had attended work-sites only to ensure that his tools were being utilised properly.
Consideration
45. The DFRDB Act makes provision for the respondent to pay invalidity benefits to members of the scheme established by that Act who have been retired on the ground of invalidity or physical or mental incapacity to perform their duties. Pursuant to section 30 of the DFRDB Act, an initial classification of a member is made into Class A, Class B or Class C in accordance with the level of incapacity as follows:
Percentage of Incapacity
Class
60% or more
A
30% or more but less than 60%
B
less than 30%
C
46. Sections 31 and 32 of the DFRDB Act set out the rates of invalidity pay which are payable to a member for each of those Classes. Section 34 of the DFRDB Act gives the Authority the power to review a recipient member's classification according to the matters set out in subsection 34(1A) of the DFRDB Act. The term recipient member is defined in sub-section 3(1) thereof and I am satisfied that the applicant meets the terms of that definition. The history of reviews of the applicant’s classification is set out above (see paragraph 1 of these reasons) and, in the decision under review, his level of incapacity was determined to be 50% and, as a result, his classification at Class B was retained.
47. Subsection 34(1A) of the DFRDB Act provides that matters to which regard may be had in determining the degree of the applicant’s incapacity are:
§his vocational, trade and professional skills, qualifications and experience;
§the kinds of civil employment which a person with his skills, qualifications and experience might reasonably undertake; and
§the degree to which a prescribed physical or mental impairment of the applicant has diminished his capacity to undertake the kinds of employment referred to.
48. That provision also enables regard to be had to such other matters, if any, as are prescribed for the purposes of the subsection and I am satisfied that there are no such prescribed matters in this case. Subsection 34(1A) of the DFRDB Act also provides that only the matters listed therein may be taken into account. In that sense, the provision is exhaustive as to those matters: see Freemanv Defence Force Retirements and Death Benefits Authority(1985) 5 AAR 156 at 160. That view was also expressed by the Tribunal in McGovern v Defence Force Retirements and Death Benefits Authority (1988) 16 ALD 791 where, at 792, the following matters were listed as not able to be taken 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.
49. In assessing the applicant’s vocational, trade and professional skills, qualifications and experience, the kinds of civil employment which a person with those skills, qualifications and experience might reasonably undertake and also the degree to which the applicant’s prescribed impairment has diminished his capacity to undertake such employment, the relevant time is the date when the Authority came to the question of reclassification: see Freemanv Defence Force Retirements and Death Benefits Authority (1985) 5 AAR 156 at 160, McGovern v Defence Force Retirements and Death Benefits Authority (1988) 16 ALD 791 at 792 and Defence Force Retirements and Death Benefits Authority v House (1989) 22 FCR 138 at 142-143 and . In this case, the relevant time is 1 May 2001. However, consideration may be given to the medical evidence up to the date of the hearing “on the basis that it will be illustrative of his condition generally”: see Re X and Defence Force Retirements and Death Benefits Authority (1980) 3 ALN N37 and McGovern v Defence Force Retirements and Death Benefits Authority (1988) 16 ALD 791 at 792.
50. Pursuant to subsection 34(1B) of the DFRDB Act, a prescribed physical or mental impairment means physical or mental impairment that was a cause of the applicant’s retirement or any other such impairment which is causally connected with that physical or mental impairment. It is not disputed and I am satisfied that the relevant prescribed physical or mental impairments to be considered for the purposes of paragraph 34(1A)(c) of the DFRDB Act in the applicant’s case are cervical disc lesion, neurological deficit upper limbs, lumbar disc lesion, tinnitus, cervical spondylosis and chronic adjustment disorder. In relation to the last-mentioned condition, I have noted the report of Dr Nathar that the applicant suffers from chronic adjustment disorder with anxious and depressed mood and Dr Nathar’s opinion that this is the responsible psychological factor in the applicant’s chronic pain syndrome.
51. In relation to paragraph 34(1A)(b) of the DFRDB Act, the Full Federal Court said in Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 at 143:
“The Tribunal should have asked itself what kinds of civil employment a person with the appropriate skills, qualifications and experience might reasonably undertake, not whether the respondent would in fact have gained employment in particular areas. By the very process of changing the objective question the statute poses into a subjective question concerning the respondent, the Tribunal introduced into its answers factors personal to the respondent which were inextricably bound up with his disability. The measure became confused with the thing to be measured.”
52. A history of the types of work in which the applicant has been involved before, during and after his Army service are summarised in his evidence above (see paragraph 9 of these reasons). It is not disputed and I am satisfied that, for the purposes of paragraph 34(1A)(b) of the DFRDB Act, the kinds of civil employment that a person might reasonably undertake and which are consistent with the applicant’s vocational, trade and professional skills, qualifications and experience as reflected in his work history are those considered in the reviewable decision. These are clerk, labourer, radio dispatcher (communications controller) and driver.
53. The process involved in determining the percentage of incapacity in a particular case was referred to by Davies J in the Tribunal decision Re Thomson and Defence Force Retirement and Death Benefits Authority(1987) 6 AAR 424 as one that is not to be undertaken as if it were a mathematical calculation but, rather, one which involves the exercise of “a value judgment of the extent to which, expressed in percentage terms, and taking into account only the matters set out in section 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment”: at 433 and see Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138 at 143.
54. Clearly, in having regard to the factors in subsection 34(1A) of the DFRDB Act, consideration must be given to the medical evidence in order to assess the extent to which the applicant is impaired by the relevant medical and psychiatric conditions.
55. Dr Scott was supportive of there being limitations on the applicant’s capacity to undertake the kinds of employment at issue in this matter. He rated the applicant as being incapacitated in the 30-60% range for work as a clerk and as a radio operator but in the 60 to 100% range for labourer and driver. He also made it clear in his evidence that, when making those allocations, he was not taking into account any psychiatric incapacity in the applicant and that he based his opinion on what he perceived to be organic factors. However, in his evidence, he also said that he agreed with the opinion of Dr Schaeffer that the presentation of physical symptoms in the applicant was not consistent with his medical conditions.
56. Dr Kahler was of the opinion that the applicant’s incapacity was in excess of 60% for all of the employment types under consideration. He believed the applicant displayed an abnormal illness pattern but not abnormal illness behaviour and that this was recognised in a person who is experiencing pain. He conceded that the applicant would be able to do some of the activities associated with work as a clerk or as a communications officer but not for any length of time. However, he also made reference to the surgery that the applicant had undergone and said that he needed to be re-assessed after three to six months.
57. Dr Nathar’s assessment was based on the psychiatric impact on the applicant’s work capacity in the nominated employment types under consideration and he described this in terms that were no greater than a moderate restriction for any of them. Dr Stevenson saw the applicant in 1995 and expressed the opinion that the applicant’s overall incapacity for work was in the order of 45%. Dr Schaeffer also saw the applicant in 1995 and his opinion was that he manifested minimal incapacity.
58. Dr Elder saw the applicant in March 2001. This was before the applicant’s surgery and not long before the Authority reconsidered the applicant’s classification in May 2001. I found his evidence to be persuasive. In particular, this was in relation to his utilisation of Waddel’s signs to verify the nature of the presentation of the applicant in a clinical setting. On that form of testing, he scored 5/5 and Dr Elder concluded that, while psychological factors may play a role in the presentation of excessive symptoms, the explanation in the applicant’s case was a significant level of exaggeration. He had also noted that the applicant was able to sit for 40 minutes in contrast to his claim that he could do so for only 10 minutes. Dr Elder assessed the applicant, in relation to the relevant types of employment, as having moderate incapacity in the order of 30%.
59. The prescribed physical and mental impairment which the applicant has would impose a degree of incapacity on him in relation to civil employment that he could undertake as a clerk, labourer, radio dispatcher and as a driver, with the highest levels of that incapacity relating to work as a labourer or driver. As noted above, the process of assessment of the extent of that incapacity is not mathematical in nature but one associated with a value judgement. I am satisfied that, overall, the level of the applicant’s incapacity can be described as moderate and such as would fall within the 30% to 60% range with the appropriate percentage allocation being 50%. This is higher than the allocation made by Dr Elder and by Dr Stevensen and takes into account the psychiatric reference made by Dr Nathar.
Decision
60. Having regard to the matters in paragraphs 34(1A)(a), (b), (c) and (d) of the DFRDB Act, I am satisfied that the level of incapacity of the applicant in relation to civil employment for the purposes of sub-section 34(1) thereof is 50% and that the appropriate classification in accordance with the terms of sub-section 30(1) of the DFRDB Act is Class B. This means that the decision under review is affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: .......................................................................................
AssociateDates of Hearing 5 and 8 August 2003; 10 November 2003
Date of Decision 4 December 2003
Counsel for the Applicant Ms Carter-Nicoll
Solicitor for the Applicant Sciaccas Lawyers
Counsel for the Respondent Mr Dubé
Solicitor for the Respondent Australian Government Solicitor
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