PETER WILLOUGHBY and DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
[2010] AATA 488
•1 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 488
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1491
GENERAL ADMINISTRATIVE DIVISION ) Re PETER WILLOUGHBY Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Dr Kerry Breen, Member Date1 July 2010
PlaceMelbourne
Decision The decision under review is affirmed.
…………[signed]………
Member
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – prescribed impairment – kinds of civil employment – reassessment of capacity to undertake civil employment – percentage incapacity – decision affirmed
Defence Force Retirement and Death Benefits Act 1973 ss 30, 34
Administrative Appeals Tribunal Act 1975 s 37
Clarke and Defence Force Retirement and Death Benefits Authority [1993] AATA 502
Freeman and Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156
Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
REASONS FOR DECISION
1 July 2010 Dr Kerry Breen, Member 1. Mr Willoughby has applied to the Tribunal for review of a decision made by the Defence Force Retirement and Death Benefits Authority on 11 July 2007 and affirmed on 17 February 2009, after reconsideration in response to a request from the applicant.
2. Mr Willoughby served in the Australian Army from 5 July 1989 until 14 July 1995 when he was discharged as medically unfit for service. His retiring impairment was then described as low back pain L4-S1. In December 1995 he was classified under s 30 of the Defence Force Retirement and Death Benefits Act 1973 (the Act) as having diminished capacity to undertake certain kinds of civil employment at 60% Class A. This classification was maintained until a medical review in 2007 led to a reclassification under the Act of 30% Class B. It is this decision that is the subject of the present appeal.
LEGISLATION
3. The Act prescribes the basis for classification and reclassification by the respondent of a member’s capacity to undertake certain kinds of civil employment and prescribes an entitlement to benefits consequent upon incapacity. The benefit payable is dependent upon a finding of a degree of invalidity assessed as a percentage measure of incapacity with respect to civil employment. Section 30 of the Act translates the class of benefit payable into three categories:
60% or more: Class A;
30% or more but less than 60%: Class B; and
Less than 30%: Class C.
The legislation relevant to the classification of incapacity is to be found in s 34 of the Act. Section 34(1A)(a)-(d) prescribes the matters which are to be taken into consideration, namely:
·the vocational, trade, professional skills, qualifications and experience of the recipient member;
·the kinds of civil employment that a person with the skills, qualifications and experience referred to above might reasonably undertake;
·the degree to which a physical or mental impairment diminishes the capacity of the recipient member to undertake the kinds of civil employment referred to above; and
·any other matters as prescribed.
A BRIEF CHRONOLOGY
4. Mr Willoughby joined the Army in 1989 at the age of 31. He first became aware that he had a problem with his lower back after he joined the Army. There is a record of inpatient hospitalisations with lower back pain in February 1992 and April 1992, the second hospitalisation following a long march where he reported severe back pain after carrying a radio on his back (T18). Investigations and assessments over the next several months led to recognition of severe degenerative disease of the lumbar spine with L4-5 disc prolapse and compression of nerve roots (T43). This condition caused the applicant to experience severe low back pain and sciatica. Conservative treatment did not help and he underwent surgery (discectomy and laminectomy) on 8 February 1993 (T55). The operation did not resolve his symptoms and he was transferred to light clerical work. Eventually he was discharged from the Army in 1995 on grounds of medical unfitness.
5. Over the ensuing years, Mr Willoughby lived at various times in Queensland, New Zealand and Victoria. Shortly after leaving the Army he commenced a six month retraining course at a TAFE college for an associate diploma in computing but he did not complete the course. He generally has not worked since 1995 although he worked in New Zealand for several months as storeman/forklift operator and worked for eight months in 2008 as a car washer and car detailer.
6. Based on a medical report of Dr Max Wearne, orthopaedic surgeon, who assessed the applicant on 26 October 1995, he was initially classified as Class A, 60%. For that classification, the prescribed impairment was listed as low back pain L4-S1 and left sciatica and the kinds of civil employment that he might reasonably undertake were deemed to be labourer, security guard and clerk. He was reviewed by an orthopaedic surgeon, Dr Grant Cowley, in New Zealand whose report dated 8 March 2000 was accepted by the Authority and Class A, 60% classification was continued.
7. On 18 April 2007 the applicant was assessed by Dr HJP Khursandi, orthopaedic surgeon. This assessment led to a reclassification on 11 July 2007 as Class B 30%. As the applicant objected to this change, the Authority arranged for a further assessment which was made by Dr Hugh Weaver, orthopaedic surgeon, on 6 November 2008. That report supported the assessment of Dr Khursandi and the Authority in a decision of 17 February 2009 maintained the classification at Class B 30%.
CONTENTIONS
8. The applicant contended that the Tribunal should prefer the medical reports of Drs Wearne and Cowley and reject the report of Dr Khursandi on the grounds that he did not have access to imaging investigations and was therefore not in the same position as Drs Wearne and Cowley to form a considered opinion. The applicant also contended that Dr Khursandi held an unrealistic expectation of the applicant’s capacity for security guard and clerical work in the light of the applicant’s restrictions in regard to prolonged periods of sitting and standing.
9. The respondent contended (in summary) that the Tribunal should prefer the more recent reports of Drs Khursandi and Weaver.
ISSUES
10. The issues to be determined are, under s 34 of the Act:
·What is the applicant’s prescribed impairment?
·What kinds of civilian employment could a person with the applicant’s vocational, trade and professional skills, qualifications and experience reasonably undertake? and
·The degree to which the prescribed impairment has diminished the capacity of the applicant to undertake the kinds of civilian employment that are identified.
11. At the commencement of the hearing, the parties agreed that the respondent’s decisions that the prescribed impairment was low back pain L4-S1 and sciatica and that the kinds of civilian employment under assessment were labourer, security officer and general clerk, were not in dispute. Although I am required to make findings in regard to both issues, the evidence that supports both findings will not be canvassed in any detail. Thus the only issue in dispute is the classification of the capacity of the applicant to undertake civil employment as a labourer, security officer or general clerk.
THE EVIDENCE
mr willoughby
12. The Tribunal heard oral evidence from Mr Willoughby and received medical reports from four orthopaedic surgeons. In addition, the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) contained a number of other reports of relevance as mentioned below. A medical report from Mr Andrew Danks, neurosurgeon, dated 14 January 2008 was also taken in to evidence (Exhibit R1).
13. Mr Willoughby explained that he did not complete the course for an associate diploma in computing in 1995 because he moved to Victoria. He thought he had attended the course for four hours per day on three days per week for two months. After leaving Queensland, he did not seek any further rehabilitation assistance although he stated that he had recently approached a rehabilitation provider in Victoria.
14. Prior to joining the Army he had undertaken a range of jobs including as a tent hand and rouseabout for a circus.
15. He explained that he returned to work in late 2007 (as a car washer) to earn money to give Christmas gifts to his children and because he was frustrated at not being in work. The position was recommended to him by his sister. While a question about any problems that might prevent him doing this type of work was asked in a pre-employment form that he completed, he did not inform his employer of his back problem. After eight months, his back condition prevented him from continuing. He stated that his back has since improved to some extent.
16. In cross examination, he was taken to two reports prepared in 1995, the first being the report of Dr Wearne dated 15 November 1995 (T142) and the second being a report of occupational therapist Ms Diane Fowler dated 5 December 1995 (T148). The applicant had been referred to the Occupational Rehabilitation Team of the Commonwealth Rehabilitation Service on 16 November 1995 and was assessed for rehabilitation by Ms Fowler.
17. The report of Dr Wearne stated
Mr Willoughby said that he is unable to stoop, play sport, run with his children and mow the lawn ...
He does not attempt to perform any chores around the house, e.g. changing a light globe, which might risk jarring his back.
The report of Ms Fowler records Mr Willoughby as currently able to pursue ten pin bowling, computers, reading and playing cards. When asked to comment on this disparity, the applicant tried to obfuscate the matter of changing light globes by suggesting that he could change a globe in a desk lamp but not one in the ceiling. He reluctantly conceded that he may have played ten pin bowling at that time.
18. He was also questioned about notable differences between the reports of Dr Wearne and Ms Fowler in relation to the type of car he drove and the amount of time he could sit in a car. To Dr Wearne, he reported driving in an automatic car with a lumbar support but has to get out of the car and move about after approximately half an hour. A month later Ms Fowler recorded Driving: 45 minutes to one hour tolerance (gets stiff and has increased ache – needs to stop and move around). Has manual car. The applicant was unable to provide a consistent explanation about these differences.
19. He was taken to the report from New Zealand of Dr Grant Cowley of 8 March 2000 (T201) which among other things recorded He is unable to garden or undertake household chores such as vacuuming, sweeping and mopping. He is able to stand and wipe the dishes for a short time. The applicant then informed the Tribunal that he had returned to work while living in New Zealand, working for some months as a storeman in a job that involved operating a forklift. He conceded that this was the first time he had informed any authority about that work and had not mentioned it to any of the doctors he had seen since then.
20. He was asked about a medical record from Ballarat Hospital which described him attending the hospital with an injury to his finger apparently as a result of playing football. He at first stated that this injury happened during his only episode of handballing a football with his children but then conceded that he may have taken his children to the park on other occasions and may have at times retrieved a football for them.
21. A report written by neurosurgeon, Mr Andrew Danks, dated 14 January 2008, after he had assessed the applicant upon referral from a general practitioner, recorded that in the early years of this century, he weaned himself off all medication and found himself to be in a pretty good state. In his oral evidence the applicant agreed that he had resided in New Zealand from 1998 or 1999 for six years. Also in his oral evidence, the applicant claimed that the term all medication did not include Panadol as he did not regard this as a medicine.
the medical evidence
22. The Tribunal received the reports of four orthopaedic surgeons who had assessed the applicant, namely Dr Wearne in 1995, Dr Cowley in 2000, Dr Khursandi in 2007 and Dr Weaver in 2008. By agreement of the parties, no doctor was called to provide oral evidence.
23. Dr Wearne summarised his assessment of the applicant as follows:
Taking an overall view of Mr Willoughby’s capacity to undertake employment, i.e. as a clerk, security guard or general hand, I would say that the impairment resulting from his back condition would amount to between 60 and 100%.
As identified above in paragraph 17, this assessment was based on a history that Mr Willoughby was unable to engage in sport and household chores.
24. Dr Cowley’s summary and assessment stated:
Mr Willoughby has persistent back and leg pain and associated disability, as a result of his 1992 lower back injury.
Mr Willoughby is unable to undertake any work which involves stooping, heavy lifting, pushing, pulling or sitting, standing, walking or driving for prolonged periods. In addition he would also find work of a sedentary or semi-sedentary occupation difficult. Mr Willoughby’s disability prevents him from undertaking the work of a labourer … Also an inability to undertake the work of a Security Officer and General Clerk…
As identified above in paragraph 19, this conclusion was based in part on his understanding of the applicant’s limited capacity at the time expressed as being unable to garden or undertake household chores.
25. Dr Khursandi concluded that:
Mr Willoughby’s impairment has diminished his capacity to work as a labourer to a large extent (60% or more).
... to work as a security office to a moderate extent (30% to 60%).
Mr Willoughby’s impairment of low back pain and sciatica has diminished his capacity to work as a general clerk to a small extent (less than 30%).
Mr Willoughby’s impairment has resulted in moderate incapacity (30% but less than 60%) for all civilian employment.
Dr Khursandi added there is a likelihood that Mr Willoughby’s degeneration of the injured L4/5 disc will progressively get worse over the coming years…
26. Dr Weaver’s report (T277) is detailed and includes comments in relation to the rehabilitation of the applicant that are not relevant to these proceedings. The most relevant conclusions include:
I would suggest that Mr Willoughby’s capacity to work as a labourer is limited to a large extent, ie within the range of 60% to 100% as defined in your documentation. By comparison, his capacity to work as a security officer is probably affected in the moderate range, from 30% to less than 60%.
As far as the situation for him to work as a general clerk is concerned, I would consider him to exhibit a “small” level of impairment, ie falling into the range of 10% to less than 30% loss of function.
other evidence
27. The report of Ms Fowler, occupational therapist of November 1995 has been referred to above (see paragraph 17) as has the report of neurosurgeon, Dr Danks of January 2008 (see paragraph 21).
INTERPRETATION OF THE EVIDENCE
28. It is clear to the Tribunal that Drs Wearne and Cowley (in 1995 and 2000 respectively) formed a view about the applicant’s capacity for civilian employment which is quite different to that formed more recently by Drs Khursandi and Weaver. As the underlying lower back problem of the applicant has been described by several doctors (see T142, T228, T277) as unlikely to improve in the future, spontaneous improvement or improvement related to treatment are also unlikely explanations of the difference between the assessments made by these specialist doctors.
29. I have formed the view that the differences can be explained on the basis of the material available to each doctor. To Dr Wearne, the applicant portrayed a picture of severe limitations in what he could do, yet just four weeks later, a history recorded (for a different purpose) by an occupational therapist, Ms Fowler, indicated that at around the time he was assessed as Class A 60% by Dr Wearne, the applicant was capable of considerably more physical activity, including participation in tenpin bowling.
30. Some five years later, Dr Cowley, in New Zealand, recorded an account given by the applicant of very severe limitations and yet, as admitted to the Tribunal, during his time in New Zealand, the applicant returned to full time physical work for some months. Further support for this view that the applicant exaggerated his physical limitations when questioned by Dr Cowley can be found in the 2008 medical report of neurosurgeon, Dr Danks. Dr Danks recorded a history of improvement of the applicant’s condition while living in New Zealand such that he weaned himself off all medications.
31. I am not persuaded that Dr Khursandi was handicapped in his assessment of the applicant by the lack of access to investigation reports. Dr Khursandi was provided with a recent xray report and prepared a supplementary report (see T268) confirming his views. I am also satisfied that at the time of preparing his report, Dr Khursandi had been provided with detailed background information by the respondent. In his report of 24 April 2007, Dr Khursandi describes Having reviewed the available records and thus it is reasonable to assume that he received extensive background material, even though the material is not itemised in the letter from the respondent requesting the assessment (T226) or in Dr Khursandi’s report.
32. I formed the view that much of the oral evidence given by the applicant was intended to minimise his capacity for work. This became apparent when he was asked to reconcile major differences between various accounts of his incapacity that he had given. He was reluctant to concede, even when he had given descriptions of his work in New Zealand and more recently Australia, that his work capacity was probably greater than he had reported. When questioned about the work as a car washer and car detailer, it was apparent to the Tribunal that he wished to understate the physical nature of the car washing work. His hesitation in answering questions about the frequency of joining his children in activities in the park created a similar impression of less than frankness.
33. The reports of Drs Khursandi and Weaver are detailed and their reports of the level of symptoms and disability recorded were not questioned by the applicant. These are quite independent reports and come to very similar conclusions. I am satisfied to the necessary degree that the conclusions arrived at by both specialists accurately reflect the degree of incapacity being experienced by the applicant at the relevant times and that the appropriate classification of the applicant is Class B, 30% or more but less than 60%. This classification effectively ensures that the applicant should not be considered fit for labouring work but should be capable of undertaking security work at the lighter end of the scale and also capable of undertaking clerical work.
34. In adopting these assessments I need to satisfy myself that the two doctors (and hence the Tribunal) have weighed up the various factors specified in s 34(1A) of the Act that need to be considered and come to a value judgement or a global assessment of the applicant’s incapacity. The term value judgement was used by Davies J, then President of this Tribunal (Re Thomson and Defence Force retirement and Death Benefits Authority (1987) 6 AAR 424 at 433) in the following manner:
Thus, the determination of a percentage of incapacity is not to be taken 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 specified in s 34(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment.
35. The term global assessment was used by the Tribunal in 1993 (Re Clarke and Defence Force Retirement and Death Benefits Authority [1993] AATA 502 at [51]) as a means of further elucidating the term value judgement in the following words:
The assessment, however, involves ultimately a global consideration of the total picture as to the extent to which the range of reasonable employment opportunities of the kind determined by the tribunal to be open to the applicant, have been diminished.
36. In the absence of more clearly laid down guidance by way of legislation and/or regulation, I am comfortable to use the term global assessment. It is very clear from the nature of the applicant’s back complaint that he is not fit for labouring work. However, given that he has in the past and more recently felt sufficiently well as to spend several months on two separate occasions undertaking physical work, it stands to reason that lighter work such as some types of security tasks and most types of clerical work are within the applicant’s capacity. In addition, although not formally trained as a security guard or as a clerk, he has had clerical experience and gave evidence that he has computer and typing skills. My global assessment of the applicant thus is that his overall incapacity for the types of civil employment under consideration fits clearly between 30% and not more than 60%.
37. I recognise that the applicant does have ongoing pain in his back and legs that fluctuates from day to day and that can be severe. He is also disadvantaged by virtue of not earlier seeking active rehabilitation and work placement. Having been out of the workforce for so long will make it difficult for him to return. However, I am not permitted under the legislation to take such matters into consideration, as was spelled out by the Full Federal Court (Re Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156), where Shephard J stated (at 160) :
It is to be observed that the matters specified in s 34(1A) as the matters to which the Authority is to have regard are the only matters with which the Authority is to be concerned. The subsection is exhaustive in this regard.
38. With regard to the issue of the prescribed impairment, I am satisfied that the evidence clearly supports the diagnosis of low back pain L4-S1 and sciatica (T146).
39. With regard to the issue of civil employment consistent with the applicant’s vocational, trade and professional skills, qualifications and experience, it is clear that prior to enlistment in the Army, the applicant had extensive experience consistent with working as a labourer and that in his last two years in the Army he had worked as a clerk (T148). Thus I am satisfied that the kinds of civilian employment under assessment are appropriately labourer, security officer and general clerk.
CONCLUSIONS
40. Based on the above assessment of the evidence, I prefer the medical reports of Drs Khursandi and Weaver and find that the correct classification Mr Willoughby is Class B, 30% or more but less than 60%.
41. I find that the correct prescribed impairment is low back pain L4-S1 and sciatica.
42. I also find that the kinds of civilian employment for the purposes of classification are labourer, security officer and general clerk.
DECISION
43. The decision under review is affirmed.
I certify that the forty three [43] preceding paragraphs are a true copy of the reasons for the decision of:
Dr Kerry Breen, Member
Signed: …………………………[signed]……………………………
Grace Horzitski Associate
Date of hearing: 10 June 2010
Date of decision: 1 July 2010
Advocate for the applicant: Mr Bruce Turner
Counsel for the respondent: Mr Damien O’Donovan
Solicitor for the respondent: Mr Dejan Lukic, Australian Government Solicitor
0
0
0