May and Defence Force Retirement and Death Benefits Authority
[2002] AATA 554
•8 July 2002
DECISION AND REASONS FOR DECISION [2002] AATA 554
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/358
GENERAL ADMINSITRATIVE DIVISION )
Re Leslie May
Applicant
And Defence Force Retirement and Death Benefits Authority
Respondent
DECISION
Tribunal Mr RP Handley, Deputy President
Date8 July 2002
PlaceSydney
Decision The Tribunal sets aside the decision under review and substitutues a new decision assessing the Applicant's incapacity as at least 60% with the consequence that he should be reclassified as Class A.
..............................................
RP Handley
Deputy President
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY – Classification for entitlement to invalidity benefits – necessity to determine the impairment which caused the Applicant to retire and whether there were other physical impairments causally connected with the impairment which lead to the incapacity at the time of discharge – whether the Applicant's classification appropriate in light of his impairments at discharge – held that the Applicant should be reclassified as Class A.
Defence Force Retirement and Death Benefits Act 1973 ss 30(1), 34(1), 34(1A)(a)(b)(c)(d)(e), 34(1B)
Safety Rehabilitation and Compensation Act 1988
Veterans' Entitlements Act 1986
Freeman v DFRDBA (1986) 5 AAR 156
Re Levin and DFRDBA (1997) 48 ALD 664
Re May and Repatriation Commission [2001] ATA 112
Re Speer and DFRDBA (1990) 20 ALD 391
REASONS FOR DECISION
8 July 2002 RP Handley
This is an application by Leslie May ("the Applicant") for a review of a decision of a delegate of the Defence Force Retirement and Death Benefits Authority ("the Respondent") made on 8 March 2001 to vary an earlier decision by another delegate and assess the Applicant's incapacity in relation to civil employment at 40% but maintaining his classification as Class B.
At the hearing, the Applicant was represented by Brian Winship of Rockcliffs, Solicitors, and the Respondent was represented by Damien O'Donovan, Solicitor, of the Australian Government Solicitor's office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. The Applicant and Dr PA Hefner gave oral evidence.
BackgroundThe Applicant was born on 13 July 1961 and is aged 41. He enlisted in the Australian Army on 16 September 1981. After initial training, he worked as a storeman. During training, the Applicant experienced pain in both feet when wearing Army boots and, on about 6 July 1982 he had surgery on the second, third, fourth and fifth toes of both feet - bilateral arthrodeses – with the insertion of a pin to straighten the toes. The pins were removed about eight weeks later.
On about 8 November 1982, the Applicant fell while working as a storeman when he claims to have injured his left knee and back. He continued to have problems with his feet and, on 28 March 1983, he was medically retired from the Army on the ground of invalidity. The physical impairments stated to be the cause of his invalidity were bilateral metatarsalgia, post-arthrodesis hypersensitivity of the second and third toes of both feet, and obesity. After discharge, the Applicant tried to obtain employment as a storeman or labourer but has remained unemployed since.
On 25 November 1983, the Committee of Alternates assessed the Applicant's incapacity to undertake civil employment as a labourer, storeman or trades assistant at 20% and classified him as Class C pursuant to s 30(1) of the Defence Force Retirement and Death Benefits Act 1973 ("the Act"). This decision was confirmed on a review on 29 June 1984. On appeal, the Tribunal, on 1 July 1985, made a decision by consent of the parties that the Applicant's incapacity in relation to civil employment was 30% and that he should be reclassified as Class B on and from 29 March 1983.
On 13 September 1991, a delegate of the Respondent confirmed the Applicant's classification after a review. On 28 May 1997, the Applicant sought a review of this classification, complaining of left knee and back pain. On 10 June 1997, a delegate deferred a further review for two years.
On 5 August 1997 the Applicant had an arthroscopy to his left knee. It revealed that the "lateral meniscus had a mid one third tear which involved both horizontal and vertical cleavage components" (report by Dr Peter Winstanley, Orthopaedic Surgeon, dated 8 August 1997, T73/141). The meniscal tear was resected. About two weeks after this surgery, the Applicant fell at home injurying his left elbow. On 2 December 1997, a CT scan of the Applicant's lumbar spine revealed (T75/143):
At L4/5 there is a mild generalised annulus bulge which may be a little more prominent on its right post lateral aspect producing mild effacement of the the thecal sac. The intervetebral foramina are adequate and the facet joints are normal. There is a mild degree of canal stenosis at this level.
In about February 1998, the Applicant lodged a claim for compensation in respect of damaged toes, left knee and lower back under the Safety, Rehabilitation and Compensation Act 1988. A decision on this claim dated 27 February 1998 was varied on 6 May 1998, admitting liability "for an incident of soft tissue strain of the muscles and ligaments of the lower back occurring on 8 November, 1982, the effects of which strain resolved within eight weeks of the date of injury" (T79/151).
About September 1997, the Applicant lodged a claim under the Veterans' Entitlements Act 1986 to have lumbar spondylosis accepted as a "defence-caused" injury or disease, and for payment of the disability pension at the Special Rate. On 7 October 1997, the Repatriation Commission rejected that claim, a decision which was affirmed by the Veterans' Review Board on 6 May 1998. On 16 February 2001, the Tribunal set aside that decision and substituted a decision that the Applicant was entitled to a pension for the defence-caused disease of lumbar spondylosis and was also entitled to payment of disability pension at the Special Rate in respect of all defence-caused injuries and diseases from 19 June 1997. The Tribunal found that the Applicant's altered gait caused by his left knee condition and contributed to by his bilateral hammer toes led to the malalignment of the Applicant's spine: Re May and Repatriation Commission [2001] AATA 112.
On 28 October 1999, the Respondent received a letter from the Applicant seeking reclassification as Class A. On 14 May 2000, a delegate deferred making a decision on this application pending further advice from Dr Hefner (T93). On 14 June 2000, having received a further report from Dr Hefner (T101), the Committee of Alternates confirmed the Applicant's incapacity in relation to civil employment at 30% and his classification as Class B (T102). By letter dated 23 June 2000 (T103), the Applicant requested that the Respondent reconsider this decision.
On 8 March 2001, a delegate of the Respondent varied the decision of 14 June 2000 by reassessing the Applicant's incapacity at 40% but confirming his classification as Class B (T107). On 21 March 2001, the Applicant lodged an application for a review of this decision by the Tribunal.
Applicable LegislationThe relevant provisions of the Act are as follows:
Reclassification in respect of incapacity
34. (1)The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.
(1A) In determining:
(aa)what is the percentage of incapacity in relation to civil employment of a recipient member; 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 undertaken 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.
The classifications set out in s 30(1) are as follows:
Percentage of Incapacity Class
60% or more A
30% or more but less than 60% B
Less than 30% C
Evidence
The Applicant
The Applicant said he served for six months in the Army Reserve in 1980 but left for personal reasons. He was physically fit on leaving. Then in 1981, he applied to join the Army, for which he had a medical examination on 17 August 1981 indicating that he was fit (T3). He joined the Army on 16 September 1981 and underwent initial training at Kapooka. He was issued with clothing and leather boots on entry. The initial training included physical training which included wading through water. As a result, his boots shrank and he began experiencing pain in the balls of both feet. This occurred within six weeks of entry.
The Applicant said he complained about his boots but he was not permitted to change them. When his feet were examined, he was told that he had plantar warts but these later turned out to be corns. Then the doctor at Bandiana diagnosed him as having hammer toes, instructed him to wear runners and referred him to a medical unit in Melbourne for surgery. On 6 July 1982, the Applicant had surgery on the second, third, fourth and fifth toes of both feet to straighten the toes by fusing one of the joints (T4). Initially, wire pins were inserted to facilitate the fusion.
On 16 August 1992, the Applicant returned to his unit on light duties pending removal of the wire pins. Because of the pins, the Applicant said he had to walk on the side of his bandaged feet to stop the wire pins causing bleeding. He was not allowed to drive his car to near the warehouse where he worked as a storeman, so he had to walk with the assistance of crutches 1 km from his car to the warehouse at the beginning of his shift and 1 km back again at the end of his shift. The wire pins were removed on 6 September 1982 but the Applicant said he still could not walk properly - it was more of a shuffle which is how he has walked ever since.
The Applicant was referred to a medical report by Dr E J Wellsted who examined the Applicant at the Regimental Aid Post ("RAP") on 17 September 1992 (R1). The Applicant described Dr Wellsted as an elderly doctor who bent the Applicant's toes causing him pain. Dr Wellsted records the Applicant as having an "abnormal gait which is 95% hysterical – now to attend physiotherapy for 'walking education'". A later report by Dr Wellsted dated 14 January 1983 states "still reluctant to adopt normal gait" (T6). The Applicant said he tried to walk normally but could not do so.
The Applicant said that on 8 November 1982, he was unloading stores from a forklift. He picked up a roll of rubber matting about four foot long weighing 50 to 60 kgs and started to walk backwards in a confined space. He stepped backwards onto a pallet but fell because there was a board missing. He fell awkwardly, landing on the right side of his lower back with his left knee buckling to the right at a sharp angle. This occurred on a concrete floor when he was wearing runners, and the roll of rubber matting fell on top of him across his hip/groin area.
The Applicant said Staff Sergeant Lawrence was on duty at that time and the Applicant went to the RAP immediately after his fall. He was examined by Dr Wellsted who recommended Panadol/Asprin for pain and liniment to rub on the sore and bruised areas of his knee. The Applicant remembered having a stabbing pain in his lower back when he moved and that his left knee was very hard to bend. He was sore and suffered severe pain for eight to ten weeks. Thereafter, his "shuffling around" became even more difficult. He continued on light duties until he was discharged on 28 March 1983.
The Applicant was referred to Dr Wellsted's report of 14 January 1983 (T6), which records the Applicant's lower extremities and spine as being normal. The Applicant said he still had pain and discomfort at that time. With regard to his pre-discharge medical report dated 15 February 1983 (T17), the Applicant said he does not agree with Dr Wellsted's having ticked "NO" to a question asking whether he had ever had a knee injury. In a medical report dated 8 November 1982 (T5), Dr Wellsted recorded that the Applicant had a "bruised left knee". The Applicant said he had an unstable, sore and painful knee and was unable to kneel or put any pressure on the knee.
The Applicant said after he was discharged, he applied for a number of jobs as a storeman, security guard or doing farm work. He thought at the time that he could do such work. On discharge he weighed over 105 kgs. Now he weighs approximately 135 kgs. The Applicant said when potential employers learned he had been medically discharged from the Army, they were not interested in employing him. The Department of Defence sent him to do an electronics course which he did part-time over three years. As part of the course, he did one to two days a week work experience. Even his work experience employer would not consider employing him when he completed the course.
The Applicant said he tried to tell the authorities about his underlying knee and back problems at the time of discharge, but they would not listen. The Applicant was referred to a medical report dated 15 August 1983 (T17). This recorded the twisting injury to his left knee in November 1982 but said that he walked without a limp. The Applicant was referred to a statement he made on 23 December 1986 (T51), referring to "pains into lower back region", and it was put to him that this was the first occasion when he claimed to suffer back pain. He disagreed. He said Dr R Ward, who prepared a report for the Department dated 5 September 1987 (T53) had refused to comment on his back because he said he had not been asked to do this. In re-examination, the Applicant was referred to a report by Mr John Wirth, Senior Rehabilitation Counsellor with the Commonwealth Rehabilitation Service ("CRS") dated 14 October 1987 (R1/3). Mr Wirth refers to the Applicant's "low back complaint" and states that "his local doctor has advised this is due to his abnormal gait and obesity".
The Applicant said it was only when an arthroscopy was performed on his left knee in 1997 that the extent of the damage from his fall in November 1982 became clear. It was following a report from his general practitioner, Dr Brett Holding, on 11 November 1997 (T74), that he made an application to the Respondent. Dr Holding's report of 2 April 1998 (R1/6) states that the Applicant's left knee "contributes major part of symptoms both feet knee – 75%, feet 25%". The Applicant said his knee has become a lot worse since his discharge and his limp has developed because of his knee and back. His bending and lifting problems also originate in his back and knee. His weight contributes generally to his problems and has increased because of the difficulty he has in exercising.
The Applicant said, following the Tribunal's decision on his claim for a disability pension, he now receives payment at the Special Rate: the Tribunal accepted that his lumbar spondylosis is defence-caused and that he is unable to work for eight hours a week. The Applicant said he could not undertake stores or clerical work because of his conditions.
The Applicant said after the surgery on his knee by Dr Peter Winstanley in 1997, his knee was unstable. About one or two weeks later, he fell when his knee gave way as he was walking along the hallway at home. He fell against a door jamb injuring his left elbow. The elbow has never recovered and is still sore, and the injury has affected his arm so that he cannot grip and hold things properly. For example, sometimes he drops things like coffee cups when he looses his grip. He no longer has any strength in the arm. Since this fall, the Applicant wears a knee brace because it helps support his knee.
The Applicant complained that Dr Hefner did not seem very interested in his problems, asked few questions, and his examination only took 15 to 20 minutes. By contrast, Professor Sambrook's and Dr Burns' examinations took over an hour. The Applicant disagreed with the opinion expressed by Dr Hefner in his report dated 18 December 2001 (R3) that the Applicant's altered gait did not cause an aggravation of his left knee. With regard to Professor Sambrook's report of 7 August 2001 (A1), the Applicant said he did not see Professor Sambrook again for this report. With reference to Dr Burns' report of 25 June 1999 (T87), the Applicant said he tries to work around the house when he can. He has had a problem with mowing the lawns for many years but can sometimes sit on the mower to do this.
Dr P A HefnerDr Hefner is a Consultant Orthopaedic Surgeon who has practiced for about 25 years. He examined the Applicant once, over a period of 20 to 30 minutes, on 22 February 2000. Dr Hefner prepared a report of that date (T92) and further reports dated 19 May 2000 (T101) and 18 December 2001 (R3). Dr Hefner was referred to Dr Winstanley's report of 8 August 1997 (T73) concerning the arthroscopy undertaken to the Applicant's left knee. Dr Hefner said that most meniscal tears are as a result of trauma, for example a fall. This tear could have occurred in November 1982. Such a tear would probably lead the person to shuffle in order to protect the knee. Dr Hefner was also referred to Professor Sambrook's report of 7 August 2001 (A1). Dr Hefner disagreed with Professor Sambrook's comment that the Applicant's left knee problem is likely to have been aggravated by his altered gait. Dr Hefner said it would be necessary to understand what Professor Sambrook meant by the word "gait" and what the nature of the gait problem was. The Applicant's shuffling gait could be related to foot problems, or the Applicant's knee or back. In the Applicant's case, his feet were the original problem. Dr Hefner recognised that Professor Sambrook's focus on "gait" might have been as a result of the reference to gait in the Applicant's solicitors' letter to Professor Sambrook dated 28 June 2001 (A2).
With regard the "mild generalised annulus bulge" revealed by the CT scan at L4/5 (T75), Dr Hefner said that such a result could be consistent with trauma particularly if there is a history of trauma given by the patient. Dr Hefner denied that an altered gait would normally upset the spine.
Dr Hefner said the Applicant's foot problem might be caused by underlying pathology such as a Mortens Neuroma. This is a relatively common problem which would probably not be related to the Applicant's service and could be fixed. Dr Hefner said that hammer toes can be straightened successfully by surgery. He agreed that following surgery, with wire pins being inserted, a person would walk on the sides of his or her feet and that this would alter the person's gait temporarily. Dr Hefner also agreed that after a fall such as that described by the Applicant in November 1982, when the person was also suffering foot problems, a person would alter his or her gait. Mechanical instability can cause a recognisable gait if a person injures their back or neck.
Dr Hefner was referred to Dr Peter Isbister's report dated 21 December 1998 (T83). He said that he accepts Dr Isbister's report about the Applicant's elbow and that the Applicant's fall in September 1997, in which he injured his left elbow, can be causally linked to his condition.
Dr Hefner was referred to a report by Dr Steven Goode, Specialist in Occupational Medicine, dated 8 March 1999 (T86). Dr Hefner agreed with Dr Goode's assessment that for the Applicant to obtain work in his current condition "in today's competitive commercial job market would prove, for practical purposes, impossible" (T86/189). Likewise, Dr Hefner agreed with the conclusion reached by Dr Mark Burns, Occupational Physician, that "in a competitive commercial workplace he would not be employable" (T8/195).
SUBMISSIONS
ApplicantMr Winship, for the Applicant, contended that the Applicant's conditions of a lateral meniscal tear of the left knee, disc protrusion at L4/5 with some degree of scoliosis, and tendonitis of the left elbow are causally connected with the medical conditions that were the cause of his retirement from the Australian Army, that is his foot problems and obesity. Mr Winship contended that it would be misleading to treat the causal connection test as an objective one. The question is one of fact which could be a finding related to a personal response by the Applicant and a belief that the conditions are causing incapacity.
Mr Winship referred the Tribunal to its earlier decision in May (supra). The findings in that decision provide corroborative evidence as to the relevant issues. The Tribunal found that the Applicant could not work for more than eight hours a week, and was entitled to payment of disability pension at the Special Rate. Mr Winship submitted that, in the present proceedings, it is reasonable to find that the Applicant is at least 60% incapacitated and should be reclassified as Class A.
RespondentMr O'Donovan, for the Respondent, addressed the matters to which he said the Tribunal should have regard pursuant to s 34(1A) of the Act. First, with regard to s 34(1A)(a), there is no dispute that the Applicant's trade skills and experience are limited to those of a storeperson and labourer. The electronics qualifications he attained in 1990 are probably now too dated to be of practical benefit. Secondly, the kinds of civil employment which the Applicant might reasonably undertake are those of storeperson and labourer (s 34 (1A)(b)).
Thirdly, the Respondent contends that the invalidity, physical or mental incapacity by reason of which the Applicant was retired (s 34(1A)(c) and s 34(1B)), is that stated in the final Medical Board report of 15 February 1983 (T7/11) recommending that he be discharged on invalidity grounds. This stated that the Applicant was unfit for marching, running or other active physical training. The fourth step is to determine the physical or mental impairment which was the cause of the invalidity or incapacity by reason of which the Applicant was retired. The Respondent relies on the impairments stated in the final Medical Board report: (1) obesity, and (2) bilateral metatarsalgia and post arthrodesis hyper-sensitivity. The Respondent, while noting that the Applicant claims that he is also suffering impairments affecting his left knee, right elbow and lower back, contends that there is no evidence which indicates that these conditions were a cause of incapacity at the time of his retirement.
Fifthly, Mr O'Donovan said the Tribunal should consider whether the Applicant has any other physical or mental impairments causally connected with physical or mental impairment which caused the invalidity or incapacity by reason of which he was retired (s 34(1A)(e) and s 34(1B)). The Respondent contends that there is no causal connection between the Applicant's left knee, right elbow and lower back condition and his retirement impairments. Finally, the Tribunal must decide the degree to which the Applicant's prescribed impairments diminish his capacity to undertaken the civil employment which he might reasonably undertake if he did not have such impairments (s 34(1A)(c)).
With regard to the Applicant's claim that his lower back conditions contributed to his invalidity or incapacity at the time of his retirement, Mr O'Donovan said the Respondent contends that the Applicant tailored his evidence to suit his claim. He probably injured his back while wood chopping in 1985, an accident referred to in his application for a disability support pension in 1991. There is no mention of the Applicant having a back condition until 1986. The compensation claim made in 1983 was in respect of his knee injury. It was only in 1997 that an association is made between the November 1982 incident and his back.
With regard to the Applicant's left knee, the Respondent accepts that the Applicant probably did injure his knee in the November 1982 fall. However, the Respondent contends that this was not an impairment that contributed to the incapacity which was the cause of his retirement. After discharge from the Army, the Applicant began to experience symptoms with the gradual deterioration in his knee over the next 14 years.
The Respondent contends that neither the Applicant's lower back condition nor left knee or elbow conditions were causally connected with his foot problem or obesity. The Respondent contends that the Applicant's limp is a knee problem and, relying on Dr Hefner's evidence, that his shuffling gait is related to his foot problem, although it may also have protected his left knee and could be why the Applicant managed with a torn meniscus for 15 years. Mr O'Donovan said only Dr Hefner appeared to understand the nature of the Applicant's foot problem and his evidence is, therefore, to be preferred to that of Professor Sambrook who did not provide sufficient information about the Applicant's gait. Mr O'Donovan said the Applicant's back condition was either as a result of a wood chopping incident or is related to his knee condition. If the latter is the case, then as the Applicant's knee condition began to deteriorate, so his back problem began to emerge. Neither the back nor knee conditions are connected with the Applicant's foot problem or obesity.
Mr O'Donovan also said the Applicant gave evidence that, at the time of discharge, his obesity did not stop him working, and that he tried to get work as a storeperson, security guard etc. Essentially, it was because of the labour market and its attitude to his medical discharge that he was unable to obtain employment, a matter which cannot be taken into account. A medical impairment assessment made by the Applicant's general practitioner, Dr B Holding, on 2 April 1998 (R1/6/10), attributes 75% of the Applicant's impairment to his left knee and 25% to his feet. A report by Dr Steven Goode, Occupational Physician, dated 9 March 1999 (T86/182), states that the Applicant's left knee condition is "the most significant in respect of functional incapacity for work". Thus, Mr O'Donovan said while the Applicant's foot condition and obesity have not changed substantially, his knee and back condition now cause a significantly greater degree of incapacity.
Application of the Law and FindingsIn order to determine the percentage of the Applicant's incapacity in relation to civil employment for the purpose of classifying him in relation to his entitlements to invalidity benefit pursuant to s 30(1) of the Act, the Tribunal must have regard to s 34. Section 34(1) empowers the Respondent from time to time to review the classification of a member in receipt of invalidity benefit and, where appropriate, reclassify the person in accordance with the classifications set out in s 30.
Section 34(1A) states that in determining the percentage of incapacity in relation to civil employment of a recipient member, the Respondent is to have regard to the matters set out in subparagraphs (a) to (d) only. See, for example: Freeman v DFRDBA (1986) 5 AAR 156 at 160; Re Levin and DFRDBA (1997) 48 ALD 664; Re Speer and DFRDBA (1990) 20 ALD 391. The Tribunal notes that subparagraph (d) is "such other matters (if any) as are prescribed for the purposes of this subsection". The Tribunal is not aware of any matters being prescribed. With regard to subparagraph (a), the parties agree and the Tribunal finds that the Applicant's trades skills and experience are limited to those of a storesperson and labourer. With regard to subparagraph (b), the parties agree and the Tribunal finds that the kinds of civil employment which the Applicant might reasonably undertake are those of store person and labourer.
With regard to subparagraph (c), in accordance with s 34(1B), the Tribunal must first determine the impairment, which was the cause of the incapacity by reason of which the recipient member retired. The Tribunal notes that the Medical Board report dated 15 February 1983 (T7/11), made shortly before the Applicant's discharge on 28 March 1983, lists the Applicant's disabilities as (1) obesity, and (2) bilateral metatarsalgia and post arthrodesis hypersensitivity. The Tribunal finds that the Applicant was suffering a further impairment at that time, namely a left knee condition. Dr P Winstanley, in a report dated 8 August 1997 (T73/141), describes the arthroscopy to the Applicant's left knee undertaken on 5 August 1997 which revealed that the:
lateral meniscus had a mid one third tear which involved both horizontal and vertical cleavage components ...The meniscal tear was resected and the joint was irrigated at the time of surgery
Dr PA Hefner, Consultant Orthopaedic Surgeon, said that most meniscal tears are as a result of trauma, for example a fall. He said this tear could have occurred in November 1982. In the Tribunal's view, there is sufficient evidence to find that in the course of his fall on 8 November 1982, the Applicant injured his knee but the extent of the injury was not revealed until the arthroscopy undertaken on 5 August 1997.
The next question is whether the Applicant's left knee condition contributed to the Applicant's incapacity for civil employment at the time of discharge. The Tribunal notes that the Medical Board report dated 15 February 1983 (T7/11) states the Applicant's employment restrictions as "unfit for marching, running or active PT". The report stated that the Applicant walked "with tendency to shuffle".
Dr Hefner said, in evidence, that a meniscal tear would probably lead the person to shuffle in order to protect the knee. Thus, the Tribunal finds that the difficulty experienced by the Applicant in walking at the time of discharge was probably caused in part by his foot condition and in part by his knee condition.
The Tribunal is not satisfied that the Applicant suffered from a lower back impairment at the time of discharge. While the Tribunal accepts that the Applicant may have hurt his back in the fall on 8 November 1982, there is no evidence to support a finding that the Applicant had anything more than possibly backstrain and/or bruising. Moreover, there is no evidence that the Applicant's back affected his capacity to undertake civil employment at that time.
Thus, the Tribunal concludes that the impairments affecting the Applicant at time of discharge were (1) obesity, (2) bilateral metatarsalgia and post arthrodesis hypersensitivity, and (3) left knee condition as a result of a meniscal tear. Each of these contributed to the Applicant's incapacity for civil employment at that time.
The Tribunal must also determine, in accordance with s 34(1B)(b), whether the Applicant suffers any other physical or mental impairment causally connected with the three impairments which were the cause of his incapacity at the time of discharge. The Applicant claims his left elbow condition is causually connected. In a report dated 21 December 1998 (T83)/171), Dr Peter Isbister, Orthopaedic Surgeon, stated:
In my opinion this man has sustained bruising of his left lateral epicondyle and has developed tendonitis at the insertion of the extensor muscles of his left elbow.
This condition is consistent with him having received a severe blow to his left elbow as a result of him falling subsequent to his knee giving way.The Applicant's evidence was that about one to two weeks after the surgery to his knee in August 1997, his knee was unstable. As he was walking along the hallway at home, his left knee gave way and he fell against a door jamb injuring his left elbow. The Tribunal notes that the Applicant's obesity – Dr Steven Goode, Specialist in Occupational Medicine, recorded the Applicant's weight at 134 kgs on 5 March 1999 (T86/182) – may have contributed to the severity of the fall. Dr Mark Burns, Occupational Physician, in a report dated 25 June 1999 (T87/191), also referred to the Applicant's fall. He stated:
Examination of his left elbow revealed marked tenderness over the lateral epicondyle. Power grip on the left side was also decreased and he seemed rather reluctant to use the arm due to pain.
In evidence, the Applicant said his elbow has never recovered and is still sore. He cannot grip and hold things properly and sometimes drops things like coffee cups. He has also lost strength in the arm. Dr Hefner, in a report dated 22 February 2000 (T92/104), noted that the Applicant was wearing "an elaborate elbow guard", which he was also wearing at the hearing, and that the Applicant "indicated tenderness in the olecranon fossa over some of the triceps muscle". However, Dr Hefner found no evidence of loss of movement or power in the elbow.
On the basis of the Applicant's evidence and that of the two Occupational specialists, the Tribunal finds that the impairment of the Applicant's left elbow does now contribute to the diminution in the Applicant's capacity for civil employment.
The decision under review, reassessing the Applicant's incapacity at 40%, was made on 8 March 2001. The Tribunal must, therefore, consider the degree to which the Applicant's physical impairments – those which affected him at the time of discharge plus the causally connected left elbow condition – diminished his capacity for civil employment on 8 March 2001. The Tribunal recognises that the Applicant now also suffers from other impairments including lumbar spondylosis: Dr Goode (T86/182) and Dr Burns (T87/191). His lower back condition affects his ability to bend and lift. Dr Goode considered the Applicant's left knee condition as being the most significant in terms "of functional incapacity for work". Dr Burns made the following assessment in accordance with the Guide to the Assessment of Rates of Veterans' Pensions ("GARP"):
G A R P ASSESSMENT (5th Edition)
Disability Table(s) Impairment
1. Bilateral Hammer Toes with Arthrodeses of 2 & 3 3.2.2 30
2. Probable Cartilage Degeneration (Lateral Meniscus) Left Knee 3.4.1 5
3.Tendonitis Left Elbow 3.1.2, 3.6.1 17
Sub Total 45
4.Lumbar Spondylosis 3.3.1, 3.6.1 22
Total 56
While the Tribunal notes this assessment was made for the purposes of the Veterans' Entitlements Act 1986 and involves the application of a specific formula in calculating the combined values of all accepted conditions, nevertheless, it does give some indication of the relative contributions of the different conditions to the Applicant's incapacity, although it should be noted that obesity is not included. Even if one takes the combined values of the three "accepted" disabilities which subtotal 45 and compares this to the impairment rating of 22 attributed to lumbar spondylosis, simple maths indicates that lumbar spondylosis accounts for 32.83% of the overall impairment value.
The Tribunal is therefore reasonably satisfied that the degree to which the Applicant's physical impairments that affected him at the time of discharge or are causally connected, and diminished his capacity for civil employment as a storesperson or labourer at the time of the review decision, is more than 60%. Pursuant to s 30(1) of the Act, he should, therefore, be reclassified as Class A.
The Tribunal sets aside the decision under review and substitutues a new decision assessing the Applicant's incapacity as at least 60% with the consequence that he should be reclassified as Class A.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
Signed: .....................................................................................
AssociateDate/s of Hearing 17 June 2002
Date of Decision 8 July 2002
Representative for the Applicant Mr B Winship, Advocate
Representative for the Respondent Mr D O'Donovan, Solicitor
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