Metcalfe and Defence Force Retirement and Death Benefits Authority
[2004] AATA 1241
•25 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1241
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/315
GENERAL ADMINISTRATIVE DIVISION ) Re ANTHONY METCALFE Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Mr M J Allen, Member Date25 November 2004
PlacePerth
Decision The decision made on 12 November 2002 to reclassify the applicant from class B to class C with effect from 13 December 2002 is set aside. The matter is remitted to the respondent with a direction that the applicant is entitled to receive invalidity benefits from 13 December 2002 as a class B recipient.
.............(sgd M J Allen)....................
Member
CATCHWORDS
DEFENCE FORCES – retirement benefits – applicant reclassified from class B to class C – at time of discharge from Army the impairment that caused the incapacity for which the applicant was discharged as medically unfit was described as a condition of the right leg – consideration of whether an impairment in the applicant’s left leg was also part of the impairment that caused the incapacity – finding that the condition in the left leg was such a cause – consideration of what categories of civil employment are applicable to the applicant – consideration of incapacity to undertake such civil employment – finding that the applicant’s incapacity remained in the 30% to 60% range and the applicant remains a class B recipient – decision under review set aside
Defence Force Retirement and Death Benefits Act 1973 ss 26, 30, 34
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286
Re Greer and Defence Force Retirement and Death Benefits Authority [2001] AATA 186; 63 ALD 282
Military Superannuation and Benefits Board No 1 v Stanger [2002] FCA 671
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
REASONS FOR DECISION
25 November 2004 Mr M J Allen, Member 1. On 12 November 2002 a delegate of the respondent made a decision to reclassify Mr Anthony Metcalfe, the applicant, from a class B benefit recipient to a class C recipient with effect from 13 December 2002. That decision was confirmed by the respondent on 25 July 2003 and the applicant has now applied for review of the original decision as confirmed on reconsideration.
2. At the hearing of the matter the applicant was represented by his advocate, Mr Dalton, and the respondent was represented by Mr Dubé, a solicitor with the Australian Government Solicitor’s office. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T142) and Exhibits A1-A4 tendered by the applicant and Exhibits R1-R5 tendered by the respondent. Oral evidence was given on behalf of the applicant by the applicant, Dr K Fitch, Colonel D R Lewis (Retired) and Ms A M Cope. Oral evidence was given on behalf of the respondent by Drs D W Fleming and J D H Bell.
Background
3. The applicant was born in August 1956 and enlisted in the Army in March 1974. Commencing in about 1977, when he was a member of the Special Air Service Regiment (“SAS”), the applicant began to experience problems with his heels and tendons as a result of his participation in Army athletics events and was under the care of a number of medical practitioners thereafter until he was discharged from the Army as medically unfit for service in March 1986 with the rank of Sergeant.
Statutory Framework
4. Section 26 of the Defence Force Retirement and Death Benefits Act 1973 (“the Act”) provides that, subject to certain exceptions that are not relevant in the present case, if a contributing member (and it was not in dispute that the applicant was such a person) is retired on the ground of physical incapacity to perform his duties, the member is entitled on his retirement to invalidity benefit in accordance with Part V of the Act.
5. Section 30 of the Act requires the respondent to determine the “… percentage of incapacity in relation to civil employment …” of such a member and to classify the member according to the percentage of the incapacity – class C if the percentage of incapacity is less than 30%, class B if the percentage is 30% or more but less than 60%, and class A if the percentage is 60% or more. The amount of invalidity benefit payable to the member depends upon the classification.
6. Section 34 of the Act authorises the respondent to, in relation to a member who is in receipt of invalidity benefits, from time to time reclassify the member in the classification categories referred to in s 30 according to the percentage of the member’s incapacity in relation to civil employment. Section 34(1A) relevantly provides that in determining the percentage of incapacity in relation to civil employment of a member the respondent:
“… 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 paragraph (b);
(d) such other matters (if any) as are prescribed for the purposes of this subsection.”
7. Section 34(1B) relevantly provides that “prescribed physical or mental impairment” 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).”
8. On 8 May 1986 the respondent made an initial classification of the applicant under s 30 (T56) based upon information provided by the Army (T55). The kinds of civil employment that were identified by the respondent as applicable to the applicant were “cook, cake decorator, clerical office assistant” and the physical impairment that was the cause of the applicant’s incapacity was described as “recurrent achilles tendonitis of right ankle”. The applicant was assessed as having a 20% incapacity and was classified C.
9. The applicant sought a reconsideration of that decision (T58) on the basis that the condition that caused his retirement was in respect of both his left and right ankles. In July 1986 the Directorate of Army Health Services (“the Directorate”) advised the respondent that it recommended that the description of the impairment that caused the retirement be unaltered but that it would agree to amend the applicant’s percentage incapacity assessment from 20% to 40%, taking him from a class C to a class B classification (T61 and T62). In October 1986 the respondent, relying on advise from the Directorate and from Dr W N Gilmour, retained the description of the impairment that caused retirement, amended the types of civil employment that were applicable to the applicant to “cook and kitchen manager”, and varied the percentage incapacity and classification of the applicant to 30% class B with effect from 27 March 1986 (T67).
10. The applicant’s classification was reconsidered on a number of occasions thereafter by the respondent. In September 1993 the relevant civil employment was described as “cook, kitchen manager and croupier” and the percentage incapacity was retained at 30% (T80). That position was maintained in review decisions made in August 1996 (T83), August 1998 (T86), and April 1999.
11. In November 2002 the applicant’s classification was again reviewed. The description of his retirement impairment remained the same but the relevant employment types were described as “cook, kitchen manager, gaming co-ordinator”. The applicant’s percentage incapacity was considered to be 15% class C with effect from 13 December 2002 (T95) based upon an assessment provided by Dr Bell to the respondent in September 2002 (T94). Further reference will be made to Dr Bell’s report below. When that decision was reconsidered the respondent concluded (T137) that the appropriate kinds of civil employment were “chef and gaming worker” and confirmed the reclassification from 30% to15% class C.
Consideration
12. The issue to be determined in these proceedings is the extent of the applicant’s incapacity in relation to civil employment as at December 2002. Section 34(1A) requires the respondent, and also this Tribunal, to have regard only to the factors (a) to (d) set out in that subsection. It was common ground between the parties that no matters have been prescribed for the purposes of factor (d), and hence I must have regard to the factors (a) to (c).
(a) Skills, Qualifications and Experience
13. In relation to when the assessment of skills, qualification and experience is to be made and the types of skills etc to be taken into account for the member for the purposes of paragraph (a) of s 34(1A), the Full Federal Court in Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 at [12] said that paragraph (a)
“… cannot be applied on a basis which excludes a pre-impairment capacity simply because a relevant skill has been lost over the period the illness prevented its use, or because a relevant qualification has lapsed or relevant experience has become dated during the same period. These things are an inevitable part of the process of diminishment of capacity through illness, and it is the result of that process which the sub-section is designed to measure. Nevertheless, if new skills, qualifications and experience have been acquired, they must be taken into account.”
I understand that passage to indicate that regard must be had to skills, qualifications and experience of the recipient that were gained prior to or during the relevant service and after the retirement from service.
14. The evidence before me was that the applicant completed 3 years of secondary education up to the age of 15 and thereafter worked for a period in a grocery shop and then as an apprentice pastry cook for about a year before enlisting in the Army at age 17. After initial training he was employed as a cook. He undertook basic cooking, advanced cooking and kitchen management courses during the period of his service and rose to the rank of Sergeant. The applicant said in his evidence, and I accept, that he had not worked as a cook in the Army in the last approximately 3 years of his service, spending most of that period doing lighter duties working in the ration stores - doing clerical tasks such as maintaining accounts, issuing stores and preparing rosters.
15. Apart from the Army training referred to above, during his Army service the applicant also completed an Army Certificate of Education level 2 and partly completed level 1. He also completed basic training and parachute courses that enabled him to be “beret qualified” or qualified to serve as a trooper in the specialist regiment in which he served. Document T55, which contains information provided by the Army to the respondent for the purpose of assessing the applicant’s benefit entitlement, referred to the formal qualifications and training as set out above, and described the applicant’s additional skills as “ECN084 – cook” and “ECN353 – SAS trooper”. I understand “ECN” to mean “employment classification number”.
16. Colonel Lewis gave evidence that he had known the applicant between 1984 and his retirement in 1986 as his commanding officer. He held the applicant in very high regard because of his abilities to compete on behalf of the regiment in sporting activities and also because of his abilities to manage his responsibilities in the catering area. As a beret qualified member of the regiment he had passed the regiment’s basic training requirements and would have been able to work as a normal soldier within the regiment with extra specialised training. This was most unusual for a catering member of the regiment – and reflected the applicant’s high degree of physical fitness and his abilities as an elite runner. As a non-commissioned officer the applicant required a high level of managerial and organisational skills and as a beret qualified soldier he was required to maintain a very high level of physical and mental strength and fitness. These qualities meant that soldiers from that regiment were, on retirement, able to undertake a wide range of employment opportunities. Many went into clerical or managerial positions whilst many took up more physical para-military occupations – such as in the police and emergency services areas or as security personnel.
17. After his retirement from the Army the applicant gained employment as a gaming dealer at a casino on a part-time basis, but after approximately 12 months his employer moved him into various non-dealing roles that were administrative and clerical in nature. His duties involved looking after the gaming equipment and table layout, liaising with the other departments to have tables or other equipment moved, liaising with suppliers, and other clerical and administrative tasks. The applicant worked in that role on a part-time basis until he was made redundant in November 2002.
18. In the circumstances I find that the applicant had at the relevant time qualifications, skills and experience in the fields of cook/chef, kitchen manager, SAS trooper, gaming worker and clerk/administrator.
(b) Kinds of Civil Employment
19. The Federal Court noted in House (above) at [10] that
“the primary question posed by paragraph (b) is not what an employer might do, nor even what the particular member might do, but what a hypothetical person with the relevant skills, qualifications and experience ‘might reasonably undertake’. …The statutory test is not whether the postulated person already has everything that is requisite, but whether a person with his skills, qualifications and experience might reasonably undertake the kind of employment in question…”.
At [11] the Court said that the
“criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so the effect of the disability may be measured against the opportunities that might have been open.
20. I have noted above that the kinds of civil employment that the respondent has considered applicable to the applicant have varied over the years and that the respondent in July 2003 considered that chef and gaming worker were the appropriate kinds of civil employment. In its Statement of Facts and Contentions filed in these proceedings (para 36) the respondent expanded that by contending that the relevant kinds of civil employment for the applicant were “clerk, chef and gaming worker” and maintained that position at the hearing. It was contended that the clerk category was a broad one, involving jobs with coordination and quasi-managerial duties, being equivalent to some type of middle management position. The gaming worker category was said to be more of the “dealer” type of duties, rather than as a pit boss or inspector.
21. The applicant’s evidence was that as a corporal cook he was responsible for running a shift in the kitchens and as a sergeant he was generally responsible for supervising shift operations, the conduct of functions, and the arrangement of catering facilities on field activities. In the last 3 years of his Army service he had spent about 80 to 90% of his time working out of the kitchen in the ration stores because of his problems with his legs.
22. The applicant said that he had only worked at the casino as a blackjack dealer for about 12 months as a casual, part-time employee and that he had moved into the administrative and clerical duties described above. Ms Cope gave evidence that she met the applicant in 1986 when he gained casual employment at the casino. At the time she was a pit boss and he was a casual dealer. The applicant’s physical problems (mainly an inability to stand for long periods) were recognised by the casino fairly quickly, but the casino was prepared to employ him in administrative and clerical roles because they recognised his organisational skills. In about 1995 he had been classified as a casual inspector and in July 1998 he was reclassified as a part-time gaming coordinator. These titles did not have any particular significance for the applicant because the applicant had no particular responsibilities regarding the supervision of the gambling activities. They were more in recognition of his fairly unique duties.
23. Document T142 contains descriptions of the duties of gaming workers, specifically dealers, table supervisors and pit bosses. Ms Cope said that the normal progression was to move from a dealer to a supervisor (also referred to as an inspector) and then on to the pit boss classification. A dealer is required to stand at tables to carry out the duties for periods of about one hour before a break. An inspector is responsible for allocating and supervising the work of dealers and generally oversee the operations of several tables, and resolving any disputes. Although he was at one stage classified as an inspector the applicant never performed the duties of such a position. He was given that title only because there was no other title that described his duties and the casino wanted to give him a pay rise. An inspector is required to stand for periods of about 1 hour at a time but can walk around the tables. Inspectors are required to stand-in as dealers on occasions.
24. Ms Cope said that a pit boss’ responsibilities include such things as preparing staff rosters, entering data into computer systems and resolving disputes for the whole pit area. It is not a particularly physical job apart from walking around the pit. About 80% of the pit boss’ time would be spent on his or her feet, spending about 1½ hours in the pit followed by a break of 30 minutes. At no time did the applicant ever perform any of the duties of a pit boss. She said that he would not be qualified to obtain such a position because it is a requirement (by government regulation) that pit bosses have at least 5 years experience and must have experience dealing all of the games conducted at the casino.
25. Ms Cope said that the position of shift manager, which is her present position, is the position above pit boss and is responsible for all the operations of all the pits in a casino in a particular shift, but also includes responsibility for the entire facilities at the casino and the adjacent hotel for the period of the shift. The shift manager is responsible for all rosters, all financial figures and the resolution of staff and patron problems.
26. Having regard to all of the above, I consider that at the relevant time, the hypothetical person with the skills, qualifications and experience that the applicant had as described above might reasonably have been expected to undertake employment as a chef or catering manager, clerical and administrative duties of a general nature, and as a gaming worker – but in the latter case work akin to a dealer or supervisor/inspector rather than a pit boss or shift manager. However, in my opinion the evidence establishes that the applicant also had vocational training and skills in defence force operations that qualified him to be a regular trooper in an elite regiment and the physical attributes to undertake such work. That is vocational experience that, in my opinion (and so I find) would make it reasonable for a person in the applicant’s position to undertake a category of employment that includes occupations such as police officer, emergency services worker or security officer. I accept the evidence of Colonel Lewis that that was a category of employment often pursued by ex members of the particular regiment and one for which those personnel were well equipped, mentally and physically, and having regard to the types of activities they undertook in the regiment.
(c) The Diminished Capacity to Undertake Employment
27. Having regard to the wording of s 34(1A)(c) and s 34(1B), it is necessary for the Tribunal to consider and determine 3 matters. The first is to determine the invalidity, or physical or mental incapacity, by reason of which the applicant was retired. The second is to determine the physical or mental impairment that caused that invalidity, or physical or mental incapacity. The third is to determine the degree to which that physical or mental impairment has diminished the applicant’s capacity to undertake the kinds of civil employment that I have found might reasonably be undertaken by a person such as the applicant: see Re Greer and Defence Force Retirement and Death Benefits Authority [2001] AATA 186; 63 ALD 282 at [29].
28. In the present case it was not in dispute between the parties that the applicant’s retirement was because of a physical incapacity that had its origins in an injury suffered in September 1977 when the applicant suffered an injury to his left achilles tendon while participating in a cross-country run as a member of the regiment team. Over the following years the applicant underwent a number of surgical procedures and was treated by a number of medical practitioners leading up to his retirement from the Army in 1986. It was not in dispute at the hearing that the applicant’s discharge was based upon his inability to wear regulation Army footwear – which affected his ability to work in the environment of a kitchen and to attend formal functions – and his inability to run. The latter point was significant, according to the applicant and Colonel Lewis, because he was regarded as having a major role in representing the regiment in running events – in which he held several service record times. Indeed, I accept the applicant’s evidence that he had been specifically invited to join the regiment because of his running ability and that he was expected to compete successfully on behalf of the regiment. I agree with the respondent’s conclusion in July 2003 that these two factors represented the physical incapacity of the applicant for which he was discharged as medically unfit.
29. The second matter to be determined is what was the impairment that caused the applicant’s physical incapacity. I have noted above that when he was first classified under s30 of the Act in 1986 the applicant questioned the description of the impairment that had been adopted by the respondent at that time, namely “recurrent Achilles tendonitis of right ankle”. The applicant continued to assert to the respondent over the succeeding years that he had been discharged from the Army because of problems in both ankles, pointing to the fact that as early as 1980, when he was still serving in the Army, liability had been accepted under the Compensation (Commonwealth Government Employees) Act 1971 (“the 1971 Act”) in respect of “left retro calcaneal bursitis” arising out the injury sustained in September 1977 (T7) and that at the same time a repatriation board allowed his claim for incapacity arising from the same impairment – but concluded that at that time the resulting incapacity was not sufficient to justify the payment of a disability pension (T8).
30. In Re Greer (above) at [33] Deputy President Forgie said in relation to the reasons for a person’s retirement on medical grounds that:
“where there is a clear statement of the incapacity or incapacities because of which a person was retired and that statement is made by the body which made the decision, that will be strong evidence of the incapacity. That however is not always the case and regard will then need to be had to less direct evidence. Among that evidence may be contemporaneous medical reports, minutes of supervisors and statements of the person concerned. There may also be evidence in the form of subsequent statements by the employing agency as to what were the reasons for the earlier retirement and from the body with responsibility to make the decision to retire a person. From whatever source the material is gathered it is all directed to determine the invalidity or physical or mental incapacity because of which a person was retired. The focus is not upon the invalidity or physical or mental incapacity upon which a person could, or should, have been retired. The focus is upon those invalidities, physical or mental incapacities upon which he was retired.”
31. In Military Superannuation and Benefits Board Number 1 v Stanger [2002] FCA 671 Kiefel J considered the provisions of the Military Superannuation and Benefits Rules, which are for present purposes identical to section 34 of the Act. In relation to the identification of the impairment that was the cause of the incapacity that caused the retirement, Kiefel J said [25] that:
“…what Dr Ell did not address in his report was whether the L5/S1 condition was likely to have been at retirement and productive of incapacity. That may have required an explanation as to why the description of the condition then referred only to L3/4. If it was seen as the or a source of impairment then, did it have a connection with the other condition and does it now? There would seem to me no reason, in principle, why an expert could not revise an initial description of a condition if later information revealed more ….”.
32. It is not in dispute that in 1977 the applicant strained his left Achilles tendon whilst running and suffered a chronic retro calcaneal bursitis of the left heel. Over the next few years he received intermittent cortisone injections with some short term relief and continued to participate in athletics events on behalf of the Army. By 1980 some minor symptoms of a similar kind had appeared in the right heel. In April 1980 Dr Nunn reported in relation to the left heel, noting that the condition was intermittent, that the applicant had not been running for about three months, and that the left heel was tender. In August 1980 the applicant underwent an operation to excise the left bursa and the underlying part of the calcaneum and a piece of degenerate Achilles tendon.
33. Over the next two years the applicant received treatment for intermittent tendonitis of the left Achilles tendon and in November 1982 Dr Nunn noted that the applicant still had pain at the back of his left heel. Dr Nunn diagnosed calcaneal exostosis and bursitis, which he considered to be permanent unless it responded to surgical treatment.
34. In November 1983 the applicant underwent further surgery when bone was removed from both heels and received radio therapy to stop the reformation of bone. In March 1984 Dr W N Gilmour reported that there was localised tenderness in the right heel.
35. In May 1984 Dr R I Saker diagnosed the applicant as having “overuse enthesopathy Achilles tendons right and left with surgical sequelae” and assessed him as having a 20% incapacity.
36. In July 1984 Dr Gilmour reported that the applicant’s condition had been static for two or three months but the report is unclear as to whether it relates to one or both heels. In September 1984 the Department of Defence accepted liability under the 1971 Act for “calcification of torn segments of the right heel tendon” to add to the acceptance of liability for the left heel condition referred to in para 29 above.
37. In January 1985 the Repatriation Commission accepted a claim by the applicant for a service related incapacity, being “overuse enthesopathy Achilles tendons right and left with surgical sequelae” with effect from September 1983 and assessed the applicant’s incapacity arising from those conditions at 30% of the general rate.
38. In July 1985 the applicant was referred to Dr Gilmour in respect of what was described as a “flare up of right Achilles tendonitis”. Dr Gilmour reported that the applicant’s left Achilles tendon was “not giving him any trouble” at that time but there was “a lot of pain” on the right side. Dr Gilmour noted that the condition was not affecting the applicant’s work, but expressed the opinion that the applicant would have to limit his physical activity for about a year, and that he will have problems wearing boots.
39. In September 1985 in a medical examination conducted as part of a disability pension review, the applicant reported that his right heel was worse than his left but the pain was not present all the time. The doctor who conducted the examination recorded that the right heel was tender and swollen over the Achilles tendon and that the left heel was tender over a part of the Achilles tendon. Based on that assessment, the Repatriation Commission maintained the applicant’s disability pension at 30% of the general rate.
40. In January 1986 the applicant underwent a final medical board to assess his capacity to remain in the army. Exhibits A4 and T50 are the examination records prepared by Dr D W Fleming, who was one of the medical officers who examined the applicant on 10 January 1986 and 23 January 1986 respectively. Exhibit A4, relating to the assessment on 10 January, recorded pain in both Achilles tendons and heels and an inability to wear boots for one year. On examination, the right heel was found to have a thickening and tenderness over the lower tendon and insertion into the heel. For the left heel, there was no obvious thickening but there was a slight tenderness. The diagnosis of disabilities was stated as “recurrent Achilles tendonitis” and the percentage of incapacity was stated as 30%.
41. Document T50, relating to the examination on 23 January 1986, recorded a similar history of tendonitis and calcaneal bursitis on both sides, and noted “further deterioration with increase from 30% to 40% disability”. The examination record for the right heel was similar for the Exhibit A4, and for the left heel the record was “slight tenderness over insertion”. The diagnosis of disabilities was stated to be “recurrent Achilles tendonitis (R)” and the percentage incapacity was stated as 40%.
42. At the 10 January 1986 examination, the applicant was not found to be medically unfit for further service by the doctors who conducted the examination, but a more senior Army medical officer, who subsequently reviewed the examination record, classified the applicant as “medically unfit (tentative)”. At the 23 January 1986 examination the applicant was found to be medically unfit for further service.
43. The applicant said in his oral evidence that the reason there were two examinations approximately 2 weeks’ apart was that he had received a cortisone injection into his left ankle at about the time of the 10 January examination and, accordingly, the examination did not give a true reflection of his condition at that time – and so he was called back to a further examination.
44. Dr Fleming gave oral evidence that he was one of the doctors who conducted the two examinations. His recollection was that the second examination was needed because he had wrongly classified the applicant at the first examination under the Army’s “Pulheems” assessment system and that the senior Army medical officer had subsequently insisted that the applicant be given a higher rating of disability because of his inability to wear army issue boots.
45. Dr Fleming said that at the time of the examinations he was aware of the applicant’s history of trouble with both Achilles tendons and heels, although he understood at the time the left side was causing significantly less problems than the right side.
46. As well as completing the examination records referred to above, Dr Fleming prepared what is now document T52, which is a report of the final medical board dated 23 January 1986. In that document the history of problems and operations on both heels and Achilles tendons are referred to, as is persistent pain and tenderness on the right side. The diagnosis referred to is said to be “recurrent Achilles tendonitis” and the cause of that disability is described as “recurrent injuries associated with organised sport”.
47. Dr Fleming agreed that the reference to “recurrent Achilles tendonitis” in T52 and Exhibit A4 may have referred to both of the applicant’s lower limbs rather than just the right, notwithstanding that T50 referred specifically to the recurrent Achilles tendonitis on the right side.
48. The applicant said in his oral evidence that he had been told at the time that he was being discharged from the Army because of his leg problems, and there was never any suggestion made to him by anybody in the Army that it was only in respect of the right leg. The applicant confirmed that in the late 1970s it was the left leg that was the main problem and that the right had become the main problem during the early 1980s. Thereafter the problems had alternated as the condition flared up from time to time.
49. As far as he was concerned, he always had some degree of pain and soreness in both legs but may well have said on occasions that one was not causing any trouble – by which he meant that although there was a degree of residual pain in the leg, it was causing much less trouble at the time than the other leg. The applicant said that the culture of the Army generally, and his regiment specifically, was to downplay any physical impediments.
50. Colonel Lewis gave oral evidence that in the period from 1984 to 1986, although he did not see medical reports concerning the applicant, he was aware that the applicant was having fitness problems with his legs from discussions he had with the applicant and Army medical staff. The applicant’s immediate supervisor had frequently asked Colonel Lewis’ approval for the applicant to work in non-standard footwear and Colonel Lewis said that he often observed the applicant wearing non-standard footwear on one foot or the other. Because of his respect for the applicant’s abilities, Colonel Lewis said that he had approved the applicant working out of the kitchen for extended periods of time and he had made representations to have the applicant exempted from undertaking certain physical courses that were necessary for him to gain promotion,
51. Colonel Lewis said that in 1985 and the beginning of 1986 the applicant was “struggling to survive” in the regiment and he would have been under considerable pressure to understate the extent of any injury or incapacity that he had. At the time of the applicant’s final medical board, Colonel Lewis had had meetings with regimental medical staff about the applicant’s conditions. He was definitely not under the impression that one of the applicant’s legs was presenting no problems and that the discharge was due only to the other leg. As far as he was concerned the applicant could not wear Army issue footwear, he could not spend long hours working in the kitchen, and he could not undertake other physical activity. This was due, Colonel Lewis believed, to both the appicant’s legs and so far as he was aware it was because of both legs that the applicant was discharged as medically unfit.
52. Dr Fitch is a consultant sports physician and was the treating physician of the applicant between 1979 and 1981, together with his orthopaedic surgical colleagues at Royal Perth Hospital. In 1981 the applicant had been referred to Dr Gilmour, who was a specialist in the surgical management of Achilles tendons conditions.
53. In his oral evidence Dr Fitch said that when he first saw the applicant it was the left leg that was causing the trouble but, as commonly occurs, bilateral tendonopathy developed. In a report in January 2003 (T105) Dr Fitch expressed the opinion that the correct description of the applicant’s condition both at that time and in 1986 was “bilateral (left greater than right) Achilles tendonopathy”. The term “tendonitis” was used in 1986 and until recent years, but it is now known that the pathology of Achilles tendon conditions is degenerative in nature rather than inflammatory and hence tendonopathy is a more correct description of the applicant’s condition – both in 1986 and at present.
54. In a subsequent report prepared in June 2003 (T135) Dr Fitch described a further condition of the applicant, namely “insertional tendoperiostel enthesopathy” – which involves the insertion of the Achilles tendon into the heel. Dr Gilmour had removed the subcutaneous bursae in both heels because of intractable pain and incapacity. This is not a procedure that is routinely performed at the present time. Enthesopathy is a condition that develops where tendons insert into bones. Because of the poor blood supply to these junctions, such conditions tend to be very difficult to manage and are often chronic. In his January 2003 report Dr Fitch said that this condition had not been mentioned by Dr Fleming in the applicant’s final medical report papers, but it was a major aspect of the applicant’s incapacity in 1979 to 1986 and remained so at the present time.
55. In his oral evidence Dr Fitch said conditions of a degenerative nature will not progress evenly and that a condition such as that suffered by the applicant would have good and bad periods – which would account for the intermittent flare ups that the applicant experienced. It was quite normal for a person who was limiting his activities because of pain in one limb to not put any stress on the other limb and hence it might be said that the other limb was not causing any particular problems at that time.
56. Having regard to the above evidence, which I accept, I am satisfied that, although at the time of his final medical board in early 1986 the applicant was experiencing more problems with his right ankle and Achilles tendon than on the left, throughout the period from 1977 to 1986 the applicant had experienced very considerable problems with both limbs, although the symptoms fluctuated from time to time. I accept the evidence of the applicant, Colonel Lewis and Dr Fitch that there were problems with both legs throughout the period and that it could not be said that it was only the right leg that was causing the applicant problems in 1986.
57. Given the discrepancies between the documentation relating to the various medical examinations that the applicant underwent in January 1986 it is difficult to draw firm conclusions about what Dr Fleming and the other medical practitioners involved at the time thought was the precise impairment that was preventing the applicant wear Army issue boots, run, and work in the kitchens. On balance, I consider that the fact that Exhibit A4 can be understood to be referring to both limbs and the fact that 2 weeks later Dr Fleming considered the applicant’s disability to have increased from 30% to 40%, justifies a conclusion that at the time the applicant’s problems with both legs were regarded as relevant and the causes of his discharge – even though document T50 refers specifically to the right limb only.
58. My conclusion is that the impairments referred to in both the applicant’s left and right legs were present at the time of his discharge and they were both productive of incapacity. The final discharge documents prepared did not, in my opinion, accurately reflect the conclusions reached as the reason for the discharge. Accordingly, I find that the impairments to the applicant’s left and right legs were together the cause of the incapacity that resulted in the applicant being discharged, and it is the impairment in both legs that represents the “prescribed physical impairment” referred to in s 34(1)(B)(a) of the Act.
59. An issue was raised at the hearing as to whether, on the assumption that the impairment that was the cause of the applicant’s discharge from the Army was limited to his right leg, whether the condition of his left leg was a physical impairment that was “causally connected” with the impairment in the right leg for the purposes of s 34(1B)(b) of the Act. In view of my findings above that the prescribed impairment was in both legs, it is unnecessary for me to consider that issue further.
60. The third matter that I must determine is the degree to which the relevant physical impairment has diminished the applicant’s capacity to undertake the kinds of civil employment that I have found to be applicable to the applicant in para 26 above.
61. The applicant’s oral evidence was that he believed that he could not work as a chef or cook at the present time. Apart from the fact that he had not worked in the kitchen for about 20 years and was no longer familiar with modern kitchen equipment, he considered that he would not be able to wear proper footwear – which is important because of the presence of hot water and oil in the kitchen environment – and he did not believe that he would be able to handle the standing on hard floors for shifts of up to 6 or 8 hours. He always has pain present, although it fluctuates from one leg to the other over time. If he tries to stand for more than four hours he experiences a great deal of pain and it can take weeks to be rid of it. He qualified as a swimming instructor in 2003 and was able to work 2-3 hours a day – but on occasions tried to work for 4 hours at a time and suffered in the following days. He found that the buoyancy of the water helped if he was standing in water, but cold water made his heels ache.
62. In relation to his work at the casino, the applicant said that he had found the duties of a dealer difficult because of the standing that was involved, but he managed by simply putting up with the discomfort. Some days were better than others and on one occasion he had had to leave work when his leg became too painful. However, after some months in the job his duties changed in the way described above and he was able to be very flexible in his hours at work and the extent to which he was on his feet. Initially he had combined some dealing activities with these other duties, but after about 12 months he stopped being a dealer and worked in the other duties only. He managed the other duties because of the flexibility of hours and the ability to take days off if he needed to. His duties at the casino immediately prior to his retrenchment involved a mixture of office work (mainly sitting at a computer) and more active movement around the casino coordinating the various matters that he was responsible for.
63. Ms Cope’s oral evidence in relation to the applicant’s capacity to undertake the duties that he was performing prior to his retrenchment was that, although the applicant was highly regarded by the casino as an employee, she thought it was most unlikely that he would pass the casino’s present medical testing requirements for new employees.
64. Ms Cope said that when the applicant worked as a dealer, which involved standing for periods of about one hour, it was apparent after a matter of a few months that he was having difficulties. When the applicant began working in the administrative job that he held he would be seen limping around the casino at times. He had no fixed hours and frequently arrived at work very early in the morning to get his work done. She believed that he could not have done the job that he did perform, or any of the other jobs at the casino, on an 8 hour shift basis – although he was capable of doing the jobs for shorter periods.
65. As has been noted above, the respondent’s decision to reclassify the applicant to Class C was made on the basis of a report from Dr Bell of September 2002 (T94). In that report Dr Bell reviewed the applicant’s history and noted that his current condition was of ongoing aches in both heels, somewhat worse on the left side. At the time the applicant continued to work at the casino. Dr Bell concluded that the applicant’s relevant condition was bilateral Achilles tendonitis that was slightly worse on the left, with ongoing mild grade chronic inflammation in both Achilles tendons. Dr Bell considered that as a cook or kitchen manager the applicant was capable of most of the activities involved, including bending and lifting weights and lifting above shoulder height – but that his problem was with standing, and it would be better if the applicant could walk intermittently and have the ability to sit and stand at will.
66. Dr Bell concluded that the applicant’s ability to work as a cook or a kitchen manager had been diminished by 10% to less than 30%, and his ability to work as a gaming worker had been diminished by less than 10%. His overall assessment, giving an equal weighting for each kind of employment, was that the applicant’s ability had been diminished by 10% to less than 30%.
67. Dr Bell expressed a hope that the applicant’s problems will improve rather than worsen with the passage of time, but because the problem had been ongoing for around 25 years it was unlikely that his Achilles tendon problem would improve significantly in the near future.
68. In January 2003 the applicant obtained a medical report from Dr Fitch (T105). As noted above, Dr Fitch concluded that the correct description of the applicant’s then condition was as set out in para [53] above. He noted that the applicant’s work at the casino allowed him to sit 70% of the time and walk when necessary, and he thought that the applicant was unsuited to work as a chef because that would require standing and walking throughout all shifts. Because of his heels the applicant is severely limited in his capacity to walk, to stand and to perform hard physical labour. Dr Fitch noted that the applicant’s impairment has not changed since his discharge from the Army and that he was, if anything, less mobile than he had been at the time of discharge despite his attempts to maintain fitness by swimming. Dr Fitch considered that Dr Fleming’s assessment of 40% incapacity was appropriate in 1986 and it remained applicable in 2003. Dr Fitch thought there was no prospect whatsoever of the applicant’s heels improving, that the applicant was physically very limited, and was in “urgent need of retraining for an alternative sedentary position”.
69. In June 2003 Dr Fitch provided a further report at the respondent’s request. He repeated his opinion about the correct description of the applicant’s conditions, noting that the pathology in chronic tendonopathies is degenerative and not inflammatory. Dr Fitch expressed the opinion that although there may be a few positions for a cook that do allow being seated for a major portion of the day, these would be in highly specialised areas. The applicant was unable to work as a cook in 1986 and certainly could not do so in 2003. Dr Fitch assessed the applicant’s incapacity to obtain full time employment as a cook in the 30 – 60% range.
70. Dr Fitch thought a position as a kitchen manager may be more suitable – although he thought it was impractical for a person who has not worked as a cook for 17 years to apply for such a position. Depending upon the physical requirements of the position, the applicant’s capacity to work as a kitchen manager was diminished by 10-30%.
71. Dr Fitch believed that the applicant would have great difficulty functioning as a gaming operator because of the necessity to stand throughout the shift and would have a 10-30% reduction in capacity for that employment. As a gaming coordinator, although such positions are rare, he thought the applicant would have a less than 10% reduction in capacity to perform that work.
72. In T135 Dr Fitch also addressed the impact of including the condition in the applicant’s left leg in the assessment of inability for employment and expressed the view that inclusion of the left Achilles pathology resulted in the applicant’s capacity being diminished further. As a kitchen manager and as a gaming operator his impairment would increase to the 30-60% range, as a gaming coordinator his impairment would remain essentially unchanged at less than 10%, and as a cook his impairment would increase to the 60-100% range.
73. The respondent also obtained reports from another orthopaedic surgeon, Dr Desmond Williams. In a report provided in January 2003 (Exhibit R3) Dr Williams recorded the history of the applicant’s conditions, noting the bilateral and chronic nature of the applicant’s problems.
74. Dr Williams referred to the reports provided by Drs Bell and Fitch and also to a report made in August 1993 by another orthopaedic surgeon, Dr Fahrer (T79) – who had assessed the applicant’s capacity to undertake employment as a cook, kitchen manager and croupier. Dr Fahrer thought the applicant’s capacity to work as a cook was reduced and that, if the duties of a kitchen manager involved work standing up and supervising what is happening in a kitchen, then the applicant would not be able to cope with the employment. So far as a croupier was concerned Dr Fahrer noted the applicant was able to do that work because of the casual and variable hours basis upon which he was employed, and that this was the ideal type of employment for the applicant. He thought that at that stage the applicant would not be able to cope with full time regular employment, even as a croupier.
75. Dr Williams noted the opinions of Dr Bell and Dr Fitch and expressed the opinion that as at 13 December 2002 the applicant’s disability was in the 30% - 60% range in the areas of employment “… as a chef or kitchen supervisor or in a gaming situation, be it manager or croupier with the requirements being that in the gaming area he requires sedentary work areas avoiding prolonged standing”. Dr Williams was not called by either party to give oral evidence at the hearing.
76. In his oral evidence Dr Fitch confirmed the opinions he had expressed about the applicant’s capacity for work as contained in his written reports. He said that for a job that involves strenuous physical activity the applicant would be almost 100% incapacitated, whereas for a job that was mainly sedentary his incapacity would be around 10%. He said that for work as a chef the incapacity would be in the 30 – 60% range but might be towards the lower range of that range if the job permitted a considerable amount of sitting and an ability to move around at will. However, Dr Fitch repeated that he did not know of any chef job that permitted a great deal of sitting.
77. Dr Fitch said that the nature of Achilles tendonopathy was that it would fluctuate in the severity of its symptoms and because of the degenerative nature of that pathology it would not deteriorate at a regular rate.
78. In relation to the views expressed by Dr Bell, Dr Fitch said that he disagreed with a number of aspects of Dr Bell’s views. He disagreed with the use of the term “tendonitis” because that term reflected an inflammatory condition, whereas in his view the more acceptable description of the applicant’s condition was tendonopathy – which focussed on the degenerative nature of the condition. Secondly, Dr Fitch said that he thought Dr Bell had concentrated on the applicant’s tendon problems and had not paid sufficient regard to the problems associated with the removal of the applicant’s bursae and the tendon insertion area. He thought Dr Bell’s assessment of incapacity was in the low side and thought that Dr Bell had implied that the applicant had improved significantly since 1986, whereas in Dr Fitch’s opinion that was not true and there was unlikely to be future improvement because of the degenerative nature of the condition.
79. In his oral evidence Dr Bell said that his assessment in September 2002 as set out in T94 reflected his assessment of the applicant’s incapacity for both legs. Although he thought it was possible to try to apportion the incapacity, Dr Bell said that he thought the applicant’s incapacity on either side would give the disability that he had assessed.
80. In relation to work as a cook or kitchen manager Dr Bell said that he did not expect these positions to involve walking great distances and he thought the applicant’s ability to stand for periods of 20 – 30 minutes at a time would be sufficient. However, Dr Bell said that he did not have personal experience assessing kitchen work but he had seen videos involving kitchen hands and cook functions and though that there would be some ability to sit to carry out the work.
81. In relation to Dr Fitch’s comments regarding tendonopathy, Dr Bell said that he accepted Dr Fitch’s view that tendonopathy was the correct description and said that inflammation may be significant in relation to the possibility of improvement, but there is likely to be degeneration when the condition is chronic – which was the case with the applicant.
82. Dr Bell said that his opinion about the applicant’s incapacity was influenced by his view that the applicant had capacity to improve because he though tendon inflammation has the capacity to improve, even though he was aware that the history of the applicant’s condition showed little improvement over the years.
83. Dr Bell said that his assessment in the range of 10% to less than 30% was intended to apply not only to the work of a chef but also to that of a kitchen manager, general employment and overall work. However, he said that the applicant’s condition was at the top end of that range and he would not disagree with an assessment that was above the 30% mark. He said that the 30% - 60% range is a very large one and he would not argue with an assessment of about 35% for the applicant.
84. The issue of how the determination of the percentage of capacity is to be assessed was considered by the Full Federal Court in House (supra) at [15] where the Court referred to the comments of Davies J in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433 that:
“…
The width of the range in employment opportunity is only one of the matters to be taken into account. The quality and nature of the range is another. Moreover, a particular impairment may indeed not greatly reduce the range of employment opportunities, but it may preclude the person from working more than part-time or intermittently. Thus, the determination of a percentage of incapacity is not to be undertaken as if it were a mathematical calculation. Rather it is a value judgement of the extent to which, expressed in percentage terms, and taking into account only the matters set out in s 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment”.
85. I was impressed with the applicant as a witness and accept the evidence that he gave. In my opinion the applicant had a substantial disability when he was discharged from the Army and, as Dr Fitch said in his oral evidence, for an elite athlete (as the applicant was) to be unable to run or even undertake any degree of physical activity, is a difficult thing and likely to affect a person’s psychological wellbeing. Notwithstanding his disability the applicant obtained employment at the casino, initially doing work that he was not really physically able to do. However, by virtue of his diligence and ability he was able to develop a job that he was able to manage. This involved a fair degree of office work interspersed with movement around the casino and the applicant was able to manage it because he was able to vary his working hours in a way that allowed him to work when he was able to and take time off when he needed to.
86. In relation to the categories of employment of chef, catering manager, clerical and administrative worker and gaming worker as found in para 26 above, I consider that the applicant would have not been able to undertake such employment on a regular full time basis even if he was able to manage the physical needs of these jobs. His capacity to undertake those categories of employment at all was, in my opinion, significantly reduced by his impairment. To the extent that their opinions differ, I prefer the evidence of Dr Fitch to that of Dr Bell because Dr Fitch has had a long association with the treatment of the applicant; he has diagnosed the applicant’s current condition in a fashion that differs from that of Dr Bell (but with which Dr Bell in his oral evidence agreed); Dr Bell agreed that his opinion was influenced by his view that the applicant’s condition might improve based on his assessment of the condition being inflammatory in nature, whereas he ultimately agreed that it was degenerative in nature; and Dr Bell’s acknowledgement of his limited experience in relation to kitchen work.
87. In the circumstances I consider that the applicant’s incapacity in relation to employment as a cook or chef is in the 30% to 60% range, and his capacity as a kitchen manager in the 20% to 30% range. As a gaming worker, I have found that the work the applicant was likely to undertake was of the nature of a dealer or inspector, which are positions that involve a considerable degree of mobility and standing. As a dealer I consider that the applicant’s incapacity was in the 30% to 50% range, and as a coordinator or inspector I consider that the applicant’s reduced capacity was in the 10% to 20% range.
88. As a clerical or administrative worker of a general nature much depends on the type of work that might be involved. I agree with the contentions of the respondent that this is a wide category of employment and will range from work that is principally desk based – which the applicant would be capable of doing with little incapacity – through to types of employment that would require considerable degrees of mobility. On the basis that such employment could be seen as mainly sedentary, I consider the applicant’s incapacity to in the order of 10% to 15%.
89. Although no direct evidence was given by any of the medical witnesses regarding the category of employment of police officer, emergency services worker or security officer, I consider that I can infer from the evidence of Dr Fitch and Dr Bell that the applicant’s incapacity was directly proportional to the degree of physical activity involved in a particular class of employment. Given the applicant’s inability to remain a soldier because of his disability, his inability to run or stand for prolonged periods, and his continuing inability to wear boots, I consider that he would have little capacity to undertake employment of these kinds. He would have a considerably lesser capacity to perform these types of employment than he would to be a cook and hence I consider that his incapacity would be in excess of 60%.
90. Having regard to the varying degrees of incapacity referred to above, and bearing in mind that this is not a mathematical calculation but is, rather, a value judgement, I consider that overall the applicant’s incapacity for the types of civil employment referred to above as at 13 December 2002 to be in the range of 40% to 50% and that his classification for the purposes of s 30 and s 34 of the Act was class B. If I were to be wrong in having regard to the category of employment of police officer, emergency services worker or security officer then I would assess the applicant’s incapacity for the other types of civil employment as being, overall, in the range of 30% to 40% and his classification would remain class B. Accordingly, the decision made on 12 November 2002 to reclassify the application from class B to class C is set aside and the matter is remitted to the respondent with a direction that the application is entitled to receive invalidity benefits on the basis of a class B classification.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen, Member
Signed: ....................................................
AssociateDate/s of Hearing 20 and 21 July 2004
Date of Decision 25 November 2004
Counsel for the Applicant Mr J Dalton
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
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