Murray and Defence Force Retirement and Death Benefits Authority
[2005] AATA 381
•29 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 381
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1921
GENERAL ADMINISTRATIVE DIVISION ) Re LEANNE MURRAY Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date29 April 2005
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution decides that the Applicant be classified Class B 30% to 60% impairment for the purposes of section 34 of the Defence Force Retirement and Death Benefits Act 1973, with effect from 18 April 2003.
..............................................
Ms R Hunt
Senior Member
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY – Invalidity benefits – Retired on the ground of physical incapacity to perform duties – Classification of disability – Determination of incapacity in relation to civil employment – Percentage of incapacity – Juvenile justice worker – Effective date of reclassification – Decision set aside.
LEGISLATION
Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 26, 30, 31, 34
CASE LAW
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Re Freeman and Defence Force Retirement and Death Benefits Authority (AAT 1778, 17 September 1984)
Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156
Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 12 ALD 720
Heatherall and DFRDBA [2004] AATA 854
Re Burr and Commissioner for Superannuation (AAT 411, 30 September 1980)
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
REASONS FOR DECISION
29 April 2005 Robin Hunt, Senior Member SUMMARY
1. Ms Leanne Murray worked for the Royal Australian Air Force (RAAF) as a steward in 1989 when she injured her lower back at work. She did not return to work for some time and consequently underwent surgery on the 25 May 1990 to relieve pain caused by a ruptured and degenerated disc at L5-S1. She was classified as having a Class B 50% disability in 1991 and has been reassessed several times since. In 2003, the Defence Force Retirement and Death Benefits Authority (DFRDBA) re-classified her from Class B 40% impairment to a Class C impairment of less than 30%. Ms Murray sought review of this decision. The Tribunal has found that Ms Murray should be classified Class B 30% to 60% for the purposes of section 34 of the Defence Force Retirement and Death Benefits Act 1973 (the Act) with effect from 18 April 2003. The reasons are set out below.
BACKGROUND
2. At the time of the Tribunal’s review, Ms Murray was aged 40, having been born on 12 February 1965. She was employed as a Unit Case Manager in a Juvenile Justice Centre at the time of the Tribunal hearing. Materials before the Tribunal show a long history associated with the present application. The Department of Defence (the Department) retired the applicant, Ms Murray, as medically unfit on 25 March 1991. Ms Murray had been employed in the RAAF as a steward when she injured her back lifting a large bucket of hot water to tip it into an urn. The Department accepted that Ms Murray’s disability was caused by her employment.
3. Ms Murray was initially classified under section 30 of the Act as 50% Class B. The delegate of the Repatriation Commission found, following medical investigation, that Ms Murray was suffering from L5/S1 disc prolapse and lumbar facet joint injury and that this injury was defence caused. The delegate additionally directed that Ms Murray’s classification be reviewed in 2 years.
4. The Repatriation Commission refused a claim for disability in the cervical region on 1 February 1993 but this decision was set aside by the Veterans’ Review Board (VRB) on 6 October 1993 with a finding that Ms Murray suffered from cervical muscular dysfunction secondary to the defence-caused disease of L5/S1 disc prolapse and lumbar facet joint injury. In 1994, she underwent surgery which relieved her back pain. On 11 May 1999, a delegate reviewed her classification, finding Ms Murray was still moderately impaired and her classification remained at 40% Class B.
5. The decision under review is a decision to reclassify Ms Murray under section 34 of the Act as Class C 20% with effect from 18 April 2003. This decision was affirmed by the DFRDBA on 21 November 2003. This meant that Ms Murray was no longer entitled to a pension payment.
ISSUES
6. The issue to be determined was Ms Murray’s invalidity classification as at 18 April 2003. The parties agreed at the hearing that the prescribed impairment was decompressive laminectomy infusion at the L5/S1 level.
LEGISLATION
7. Part V of the Act provides invalidity benefits under a scheme established for members who have been retired on the ground of invalidity or physical or mental incapacity to perform their duties. Section 26 of the Act provides that, subject to certain other provisions, a member of the scheme is entitled upon retirement to invalidity benefits.
8. The initial classification of a member is made pursuant to section 30 of the Act. This section provides for determination of the member’s percentage of incapacity in relation to civil employment and classification of the person according to the percentage of incapacity as follows:
60% or more: Class A
30% or more but less than 60%: Class B
Less than 30%: Class C
9. Section 31 provides for the rate of pension payable to a member classified as either Class A or B. A member classified as Class C is not entitled to the payment of an ongoing pension. Section 34 of the Act gives the power to review a member’s classification according to the matters set out in subsections 34(1A) and 34(1B). Section 34(1A) recites the only factors to which the Tribunal may have regard in making its determination of Ms Murray’s percentage incapacity. These factors are discussed below in the Tribunal’s reasons.
10. Section 34(1B) of the Act defines “prescribed physical or mental impairment” as:
“(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).”
Subsection 34(2) states that the Authority must specify the date from which the classification shall have effect.
EVIDENCE
11. Ms Murray told the Tribunal that she had left school at age 17 and found work as an office junior. She had other positions including one as a process worker before joining the RAAF as a steward. After the accident, she worked as a breakfast cook with the Department of Juvenile Justice before progressing to her current position as a Unit Co-ordinator in the juvenile justice system. Ms Murray’s Statement of Facts and Contentions indicated that she had attempted to undertake several types of work. As well, Ms Murray has completed a range of formal qualifications including Certificates III and IV in Juvenile Justice (Youth Work).
12. Ms Murray admitted that her current job description included heavy lifting and dealing with potentially violent people. However, she did not actually do any heavy lifting. Documents before the Tribunal indicate that Ms Murray has been commended for dealing ably with difficult situations arising in her work. Mr Reberger, the Manager of the Juvenile Justice Centre at which Ms Murray worked, praised her excellent working relationship with the young people in her care and other members of staff. He emphasised the strength of her verbal skills and explained that she was able to use these skills to defuse situations that might have resulted in physical violence towards her. He said he was aware of her physical limitations and that she required assistance with some tasks such as lifting heavy boxes of food. He gave evidence to the effect that she received assistance where needed and this was not a major part of Ms Murray’s duties. Although her job was very difficult in that it was often confrontational and could sometimes be physical, she overcame risk of further damage to her back problems using her verbal skills. Without this ability she would be unable to continue.
13. A number of medical doctors have been asked from time to time to provide impairment assessments of Ms Murray for various occupations, including process worker, clerk, receptionist, steward and youth worker as well as prison officer or custodial services officer. Dr Hodgins, a general practitioner with a long history of treating Ms Murray, gave evidence that Ms Murray had not complained to him of trouble with her back after incidents at work. He gave evidence to the effect that Ms Murray’s condition had improved since she had surgery on her back in 1990. However, Dr Hodgins recounted in a report dated 2 July 2003, that Ms Murray experienced inability to undertake prolonged standing or sitting. She further gave evidence that she continues to prescribe pain killers to Ms Murray. Dr Hodgins thought Ms Murray would have trouble cleaning, packing and operating large machinery as a process worker and would be unable to serve food or drinks as a hospitality worker. In her opinion, Ms Murray was incapacitated to a moderate degree of 30% to 60% in all occupations about which she was questioned apart from process worker, which she thought would involve a high degree of impairment.
14. Dr Billett, who is a consultant orthopaedic surgeon, made a report to the Respondent in February 2003. He noted Ms Murray’s impairments for a juvenile justice youth worker as small, 10% to 30%, for a steward as moderate, 30% to 60%, and for a process worker as moderate, 30% to 60%. He observed that surgery carried out to improve Ms Murray’s injury in 1990 had been successful. Overall, Dr Billett reported a global impairment of only 20%. Dr Billett also found that Ms Murray’s condition had stabilised and she may deteriorate. Later, on 7 September 2004, Dr Billett responded to a request to assess Ms Murray’s capacity for employment as a prison officer and as a hospitality worker. Dr Billet found Ms Murray was diminished as a prison officer by a moderate impairment of 30% to 60%. He equated hospitality worker with steward as to a moderate impairment of 30% to 60%.
15. Dr Harvey-Sutton, who is a consultant occupational physician, was engaged by Ms Murray’s legal advisers. In her report of 22 January 2004, Dr Harvey-Sutton found that:
“there appears to be no evidence as to why her ... pension level should be changed …”.
Dr Harvey-Sutton reported Ms Murray’s condition will, at best, remain stationary and, at worst, gradually deteriorate.
16. Dr Jones, a consultant orthopaedic surgeon, who was retained by the Respondent, saw Ms Murray in 1999 as well as in 2003 and indicated that she had an overall impairment of 55%. He found the degree of movement in the lower back was worse in 2003 than it had been in 1999. He noted that Ms Murray continued to experience pain and significant functional disability and that she required medication to maintain herself in full employment. Dr Jones was asked, among other occupations, to consider the occupations of general clerk, prison officer, hospitality worker and factory labourer. He found a high to moderate disability in these and other areas.
ISSUES CONSIDERED
17. The Tribunal has been asked to review the reclassification decision determining Ms Murray’s entitlement as at 18 April 2003. The question to be determined is her degree of incapacity for civilian employment in percentage terms. For the purposes of section 34 of the Act, the Tribunal had regard to the following questions only:
a. what are the vocational, trade and professional skills, qualifications and experience of the applicant;
b. what are the kinds of civil employment which a person with the applicant’s vocational, trade and professional skills, qualifications and experience might reasonably undertake;
c. what was the applicant’s prescribed physical or mental impairment being;
–what was the physical or mental impairment which caused the incapacity by reason of which the applicant was retired (the retirement impairment); and
–is there any other physical or mental impairment causally connected with the retirement impairment; and,
d. finally, as at 18 April 2003, to what degree has the applicant’s prescribed physical or mental impairment diminished her capacity to undertake the kinds of employment referred to in paragraph b above?
18. Upon re-classification, there must be a re-assessment of the incapacity taking into account current skills, qualifications and experience of the person. In Re Freeman and DFRDB Authority (AAT 1778, 17 September 1984), the Tribunal held that the assessment of incapacity is not confined to pre-injury employment skills. In Re Freeman, the Tribunal took account of the person’s experience gained post injury as a security officer although the person had been a bricklayer before the injury. On appeal, it was held that the Tribunal did not fall into error and stated that section 34 of the Act required an assessment of fact of the applicant’s position as at that particular point in time. Similarly, I have taken into account Ms Murray’s most recent employment and qualifications and her pre-injury experience. In DFRDBAv House (1989) 22 FCR 138 the Full Court of the Federal Court applied the reasoning in Freeman v DFRDBA (1985) 5 AAR 156 and further indicated that only the considerations expressed in section 34 may be taken into account in concluding what kinds of civil employment a person might undertake. The question is not a subjective one and the actual employment that a person has obtained is not the test of what civil employment the person might reasonably undertake for the purposes of the section. It is not the actual attainment of employment that is the relevant question but rather, as expressed in House at 289:
“…the primary question posed by paragraph 34(1A)](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“. Substituted expressions may tend to lose the peculiar force of the statutory language, which does not at all suggest that the absence of a particular licence, or the need of a particular refresher course, would constitute a barrier.”
19. The Act does not state how the percentage is to be arrived at, except to note in subsection 34(1A)(c) that there be consideration of the degree to which the physical or mental impairment has diminished the capacity to undertake the specified kinds of employment. Davies J in Thomson and DFRDBA (1987) 6 AAR 424 at 433 interpreted the provision thus:
“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 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 judgment 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.”
20. As well, subsection 34(1B) defines the impairment under consideration as the one that caused or was a cause that resulted in the member’s retirement. The definition does not refer to any other impairment. In the present case, the parties have agreed as to the prescribed impairment, being the one recognised in calculating Ms Murray’s percentage of impairment from time to time since. There was no dispute that surgery in 1990 had improved Ms Murray’s condition since the original injury.
DISCUSSION OF EVIDENCE AND FINDINGS
21. The Tribunal has considered the above evidence in light of the requirements set out in section 34(1A), being the only considerations expressed, as enunciated in House. These considerations are dealt with under headings below.
1. What are Ms Murray’s vocational, trade and professional skills, qualifications and experience?
22. On the material before the Tribunal, Ms Murray left school after completing year 10. She worked as a junior clerical assistant, stock controller and process worker before she joined the Department as a steward. Since her injury, Ms Murray has worked as a canteen server, security officer, breakfast cook at a Juvenile Justice Centre, and then continued in the Department of Juvenile Justice as an acting team leader, senior youth worker and youth officer. She then found her niche in her present position as a Unit Case Manager in the juvenile justice system. Ms Murray also completed some TAFE courses and courses run by the Department of Juvenile Justice, obtaining a diploma in dietary practices and certificates III and IV in Juvenile Justice (Youth Work).
23. On balance, and taking this record into account, I consider that Ms Murray’s main skills, qualifications and experience reasonably encompass positions such as a steward or hospitality worker and as a youth worker in the juvenile justice system.
24. Ms Murray’s recent experience and certificates are directed towards the career of unit co-ordinator with youthful offenders and this is her most obvious area of skills, qualifications and experience. I accept Ms Murray is not suited to be a process worker having been engaged in that type of work for only a short time when she first entered the workforce. She also has had no particularly strong experience as a receptionist or general clerk and I find that her limited experience in these areas does not readily qualify her for these occupations.
25. In summary, Ms Murray’s skills, qualifications and experience suit her to:
§Hospitality worker
§Juvenile justice youth worker
2. What are the kinds of civil employment which a person with Ms Murray’s skills, qualifications and experience might reasonably undertake?
26. On balance, and noting that Ms Murray’s present occupation is a hazardous one, but also noting that “it is not the actual attainment of employment that is the relevant question” but rather “what a hypothetical person with the relevant skills, qualifications and experience might ‘reasonably undertake’“ (see House above), I accept that Ms Murray still might reasonably undertake the position of unit co-ordinator responsible for youthful offenders, for the purposes of test two in section 34(1A). As well, I find Ms Murray’s skills, qualifications and experience to be:
§Hospitality worker
§Juvenile justice youth worker
3. What was the physical or mental incapacity by reason of which Ms Murray was retired?
27. It is not in dispute that Ms Murray suffered the physical injury and resulting incapacity of ‘decompressive laminectomy and fusion at L5/S1 level’. Her incapacity results from this injury. As Tribunal Member Isenberg noted in Heatherall and DFRDBA [2004] AATA 854, there is no definition of ‘incapacity’ in the Act. ‘Incapacity’ was, however, considered in Re Burr and Commissioner for Superannuation (AAT 411, 30 September 1980). The Tribunal said at paragraph 22:
“The phrase `incapacity which was the ground for...retirement' is not we consider necessarily to be seen as itself connoting a physical or mental condition. It would seem to relate more properly to the outward result that leads to a person being unable to perform, that is to say to lack the capacity to perform, his or her duties. The distinction between `incapacity' and a ‘condition’ is clearly made in the legislative text, where the question is raised as to whether the incapacity was caused or substantially contributed to by a condition or conditions.”
28. In Cocks v Commissioner for Superannuation (1990) 21 ALD 297 at 305-306, Davies J proceeded on the basis that it was proper for the Commissioner to form his own opinion of what the retirement incapacity was. Incapacity is the inability to do something. As the member in Heatherall observed, a person may have a certain capacity for an activity, and as long as they do only so much of that activity as they have capacity for, there is no incapacity for that activity, for example light duties. If, as in this case, a medical condition reduces capacity, so that there is no capacity to do an activity the person could previously do, it is that inability, not its cause which is the incapacity. In this case, the delegate who made the decision in 1991 found that Ms Murray’s range of movement was restricted by three quarters and that she had sciatica when walking of varying severity, and that she experienced pain on prolonged walking, sitting and standing. Her mobility was restricted. The delegate further found Ms Murray’s ‘accustomed range of activities is restricted’ in her personal relationships and that she did not have the capacity to undertake a full range of household activities and needed assistance with some tasks. The delegate also found that Ms Murray was unable to continue some of her former recreational activities. The material before the Tribunal does not cast doubt on Ms Murray having this physical incapacity when she was retired.
(a) What was the physical or mental impairment which was the cause of the invalidity or physical or mental incapacity by reason of which Ms Murray was retired?
29. The physical impairment by which Ms Murray was retired was from L5/S1 disc prolapse and lumbar facet joint injury.
(b) Has Ms Murray suffered from any other physical or mental impairment causally connected with the prescribed physical or mental impairment?
30. On 6 October 2003, the VRB found that Ms Murray suffered from cervical muscular dysfunction secondary to the defence-caused disease of L5/S1 disc prolapse and lumbar facet joint injury. Ms Murray does not claim and does not suffer from any other impairment causally connected with the physical impairment.
4. To what degree has Ms Murray’s prescribed physical or mental impairment diminished her capacity to undertake the kinds of civil employment identified above?
31. My task is to make a determination of the extent to which, in percentage terms, and taking into account only the matters set out in s 34(1A), Ms Murray has suffered incapacity to engage in civil employment. I found Ms Murray a truthful witness. I accept the evidence of Ms Murray that she presently does not have the capacity to carry out some of the duties of a unit co-ordinator in the juvenile justice system, such as lifting heavy boxes of food stores, because of her back injury. She also relies on her verbal skills to control confrontational situations as she cannot physically defend herself from violence and is at a more than usual risk of further injury to her back if exposed to violent attack. She also has limitations as to her ability to sit or stand in one position for any length of time. Ms Murray’s evidence is supported by the evidence of Mr Reberger and by medical reports before the Tribunal, in particular, the reports of Dr Jones and Dr Harvey-Sutton. In addition, Dr Hodgins provided reliable evidence that Ms Murray continues to take medication prescribed to deal with pain.
32. Ms Murray’s incapacity prevents her from undertaking sedentary work for more than part of a working day as she cannot sit for long periods. Her incapacity also prevents her from engaging in a range of other activities. She is an effective and commended unit co-ordinator in a custodial environment, working with youth, due to adjustments made to the role by her supervisor and also due to her own attributes, other than physical attributes. When Dr Billett considered Ms Murray’s fitness for duties as a conventional youth worker, and found little incapacity, he was not presented with the reality that Ms Murray’s present position involves modified duties in a custodial environment. By contrast, when he later assessed Ms Murray, on 7 September 2004, for a position as a prison officer, he found her incapacity for that position to be moderate, i.e. 30% to 60%. His conclusions, therefore, were:
Youth worker 10% to 30% (small)
Steward 30% to 60% (moderate)
Process worker 30% to 60% (moderate)
Prison officer 30% to 60% (moderate)
33. When Dr Billett made an overall assessment of 20% impairment, he had not yet made the assessment of Ms Murray’s moderate degree of incapacity as a prison officer. His overall assessment therefore requires adjustment in this respect. I have also found that Ms Murray is not suited to the occupation of process worker so this should not be part of the overall assessment. Dr Billet’s assessment of the two occupations for which I have found Ms Murray is suited is “moderate”.
34. By comparison, Dr Harvey-Sutton’s conclusions, on 22 January 2004, were that there was no reason to downgrade Ms Murray from the previous moderate level B assessment.
35. Dr Jones, on 31 May 2004, when asked by the Respondent to assess Ms Murray as a general clerk, prison officer, hospitality worker and factory labourer, reported an overall impairment of 55%. Dr Jones’ assessment to the occupations of prison officer and hospitality worker bears on the occupations for which Ms Murray is suited. Both show moderate impairment.
General clerk 10% to 30% (small)
Prison officer 30% to 60% (moderate)
Hospitality worker 30% to 60% (moderate)
Factory labourer 60% to less than 100% (large)
36. Dr Hodgins, Ms Murray’s general practitioner, on 2 July 2003, gave her opinion of overall incapacity as moderate and specific occupations as:
Hospitality worker 30% to 60% (moderate)
Process worker 30% to 60% (moderate)
Correctional services officer 30% to 60% (moderate)
37. Dr Hodgins assessment for the two relevant occupations of hospitality worker and of correctional services officer is moderate. As can be seen, the majority of medical opinion is that Ms Murray continues to be moderately impaired for occupations to which she is suited. Taking these opinions into account and viewing the oral and documentary evidence in light of the requirements of section 34, I have formed the view that Ms Murray continues to suffer a moderate degree of incapacity for the kinds of civil employment identified. This is so even though she was holding down a job in the Department of Juvenile Justice at the time of the Tribunal’s hearing. The modifications to the role in that Department have already been discussed above and I have accepted that evidence as the reality of Ms Murray’s situation.
38. There is no evidence before the Tribunal of any improvement in Ms Murray’s condition since her assessment at level B in 1999. The case for the Respondent was largely based on Ms Murray’s current employment and Dr Jones’ assessment of juvenile justice youth worker. It follows that Ms Murray should be classified Class B for the purposes of section 34 of the Act with effect from 18 April 2003. Therefore, the Tribunal is not persuaded that Ms Murray’s assessment should be reduced.
DECISION
39. The Tribunal sets aside the decision under review and in substitution decides that the Applicant be classified Class B 30% to 60% impairment for the purposes of section 34 of the Defence Force Retirement and Death Benefits Act 1973, with effect from 18 April 2003.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
Zoe McDonaldAssociate
Date/s of Hearing: 24/25 November 2004
Date of Decision: 29 April 2005
Counsel for the Applicant: Mr P Burge
Solicitor for the Applicant: Mr M Callaghan
Counsel for the Respondent: Mr A Dillon
Solicitor for the Respondent: Ms K Cassoff
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