PHILIP JOHN CARTER and DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

[2010] AATA 145

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 145

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1241

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		PHILIP JOHN CARTER

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Dr R McRae, Member

Date26 February 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Roderick McRae
  Member

DEFENCE FORCE BENEFITS ‑ incapacity assessment – fractured scaphoid – total wrist fusion – classification of incapacity for civilian employment ‑ decision under review affirmed

Administrative Appeals Tribunal Act 1975 s 37

Defence Force Retirement Act 1948  ss 51, 53

Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424

REASONS FOR DECISION

26 February 2010 Dr R McRae, Member

1.      Mr Philip Carter (the Applicant) was discharged from the Royal Australian Navy (the navy) on 22 March 1972 because he was medically unfit for service.  He became entitled to an invalidity benefit under s 51 of the Defence Force Retirement Benefits Act 1948 (the Act).  On 5 May 2008 a delegate of the Defence Force Retirement and Death Benefits Authority (the Respondent) determined that the Applicant’s percentage of incapacity in relation to civil employment was 40% (Class B).  The date of effect of the decision was 19 November 2007.  The Applicant sought a reconsideration of that decision.  On 17 February 2009 the Respondent varied this decision such that the percentage of incapacity in relation to civil employment was 50% (Class B).  The Applicant now seeks a review of this decision by this Tribunal.

2.      The issue before the Tribunal is whether the Applicant’s invalidity classification ought to be Class A according to the requirements of s 53 of the Act. The Tribunal’s decision is that the Applicant was not entitled to Class A invalidity classification. 

3. The Applicant was self-represented. Mr Andrew Dillon, a solicitor with the Australian Government Solicitor, represented the Respondent. The Tribunal had before it documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  The Tribunal accepted into evidence eight tendered documents from the Applicant; and a book of authorities and a letter from Mr E Mah, an orthopaedic hand and micro-surgeon from the Respondent.

4.      The Tribunal heard the testimony of Mr D Macintosh, orthopaedic surgeon, and Dr G Ramage, occupational physician, by telephone.

BACKGROUND

5.      The Applicant is a 60-year-old, married, Australian man.  He joined the navy on 12 July 1965 at 15 years of age, during his intermediate year at high school.  He was discharged on 22 March 1972 on medical grounds.  His retirement impairment was a fractured right scaphoid (his dominant limb), after an accidental fall in 1968 at HMAS Cerberus.  After he sustained his injury, he was employed in a subordinate capacity in offices and storerooms and behind counters.  After his discharge from the navy, the Applicant had various occupations involving sales and worked as an operating theatre orderly.

6.      At his discharge, the Applicant was entitled to and received invalidity benefits under the Act.  Initially, the benefits were assessed as 30% Class B.  Several reviews by the Respondent through 1977 resulted in the downgrading of invalidity benefits to 25% Class C; for which there was no entitlement to payment of a pension.  After a review of the Applicant’s condition by Dr J Talbot, orthopaedic surgeon, from 13 July 2004 the Respondent reclassified the Applicant at 30% Class B; to which the Applicant did not object. 

7.      The Applicant had remained in full time employment throughout this period.  The latter period included employment as a sales representative, which required significant on-call and driving commitments.  The Applicant sought a further review of the level of his benefits after he had a total right wrist fusion by Mr S Csongvay, orthopaedic surgeon, on 17 March 2006.  He was seeking Class A invalidity benefits. 

8.      Mr D Macintosh stated that a wrist fusion was undertaken to stabilise the joint for function, to reduce pain, and to place the wrist in a good position for useful function.  He stated a person probably should be able to drive for eight to nine hours at a time after a wrist fusion.  It would be difficult to [undertake] radial and ulnar deviation ... or to write for a long time ... or to do heavy stuff, although it would be possible to use the left upper limb for heavy lifting.  Mr Macintosh said that tasks that required fine motor skills could still be undertaken.

9.      Dr G Ramage stated his assessment was guarded as he considered there was artificiality of the test required when undertaking an assessment.  He stated a person with a fused wrist would be able to undertake most types of work in the categories of employment being considered, with the possibility of needing to avoid heavy lifting or long driving or a lot of manual work.  He stated other store duties would be OK.

LEGISLATION

10.     Section 51 of the Act provides that:

(1)  Subject to subsection (3), where:

(a)a member who is a contributor has been retired before attaining the retiring age for the rank held by him;

…

on the ground of invalidity … he is entitled to benefit in accordance with sections 52, 52A and 53, but, subject to section 60, is not otherwise entitled to benefit under this Act.

(2)  Where a person (not being a person to whom section 52A applies) is, or is about to become, entitled to benefit by virtue of subsection (1), the Authority shall determine the percentage of total incapacity of the person in relation to civil employment and shall classify the person according to the percentage of incapacity as follows:

Percentage of Incapacity  Class

60 or over  A

30 or over but less than 60  B

Less than 30  C

…

11.     Section 53 of the Act provides that:

(1)The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a pensioner classified under section 51 is such that the classification of the pensioner should be altered, reclassify him in the appropriate classification set out in subsection 51(2) according to the percentage of his incapacity in relation to civil employment.

(1A) In determining:

(aa) what is the percentage of incapacity in relation to civil employment of a pensioner; or

…

the Authority shall have regard to the following matters only:

(a)the vocational, trade and professional skills, qualifications and experience of the pensioner;

(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 pensioner, being a prescribed physical or mental impairment, has or had diminished the capacity of the pensioner to undertake the kinds of civil employment referred to in paragraph (b)

(d)such other matters (if any) as are prescribed for the purposes of this subsection.

(1B) In subsection (1A), prescribed physical or mental impairment , in relation to a pensioner …, means:

(a)  a physical or mental impairment of the pensioner that was the cause, … of the invalidity … by reason of which the pensioner was retired, whether or not that impairment changed, for better or worse, since that retirement; or

(b)  ….

(2)Where a person is reclassified under this section, the Authority shall specify the date from which the reclassification has effect and, on and after that date, the person shall, for the purposes of section 52, be deemed to be classified accordingly.

APPLICANT’S SUBMISSIONS

12.     The Applicant stated that he considered the Respondent had given excessive weight to Dr Macintosh’s medical assessment (which he had obtained through a Freedom of Information application), particularly as he had not performed a standardised grip strength test with a dynamometer.  Several medical assessments he had seen had referenced the term large, implying that the Respondent should have awarded him a Class A invalidity assessment. 

RESPONDENT’S SUBMISSION

13.     The Respondent submitted that it was appropriate to contemplate broad categories of employment for the Applicant, rather than focus on the specific examples the Applicant has performed.  This embraces the reasonable generalities of employment as a store person, a sales representative, a sales assistant or an operating theatre technician.  The Respondent also submitted that the Applicant’s claim for an alteration of his invalidity assessment had been the changing circumstances of total right wrist fusion; yet his capacity for civilian employment had not decreased as a result of the successful wrist surgery. 

14.     The Respondent submitted that, given the successful fusion of the right wrist, the Applicant’s symptoms had reduced and his functional capability was likely to be better than when previous assessments had been undertaken.  The Respondent submitted that those medical assessments referring to large incapacity for civilian employment failed to apply the objective test required by s 53 of the Act, which is what type of employment might reasonably be undertaken by a person.

FINDINGS

15.     The Applicant joined the navy on 12 July 1965.  He was discharged on 22 March 1972 on the medical grounds of fractured right scaphoid, as he was unable to go to sea.  His impairment was an un-united fracture of his right scaphoid.  The Applicant had multiple medical attendances related to pain and stiffness of his right wrist over the ensuing years.  He maintained full time employment without excessive sick leave up to 2007.  He underwent a successful right total wrist fusion on 17 March 2006.  Objective evidence indicates this fusion was successful, with the symptom of pain disappearing and function being similar to pre-fusion function and demonstratively not worse.  The Applicant was not dissatisfied with a Class B incapacity rating before his wrist-fusion.

16.     Ascertaining civil employment according to the Act is an objective test, embracing the experience and training of a person, and assessing what they might be capable of undertaking.  The Applicant’s occupational experience includes that of a store person, a sales representative and an operating room technician.  The Tribunal accepts that there is a continuum of exposure to features of these types of employment, such as the quantum of heavy lifting or driving requirement within each employment type.  This is the value judgment to which Davies J referred in Re Thomson and Defence Force Retirement and Death Benefits Authority at 433.

17.     When taken together, all the medical assessments are consistent with respect to the Applicant’s fine motor power, grip strength and function of the right hand/wrist functional unit.  All the assessments agree that it is likely there will be difficulty with the heavy extremes of all work categories but these extremes do not exist in the majority of employment in the work categories.  Some assessments have nominated large to ensure that every possibility of every work-type is embraced.  The Applicant has noticed this terminology.

18.     The evidence indicates the Applicant has considerable capacity to undertake typical employment tasks which are characteristic of the requirements within the employment types for which he has experience.  The evidence is consistent that this would be at the low end of the moderate range of incapacity.

CONCLUSION

19.     The Applicant does not satisfy s 53 of the Act such that he qualifies for Class A incapacity assessment.

DECISION

20.     Accordingly, the Tribunal affirms the decision made on 17 February 2009.

I certify that the twenty [20] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr R McRae, Member

Signed:          Dianne Eva

Clerk

Date of Hearing  27 November 2009

Date of Decision  26 February 2010
Advocate for the Applicant          Self Represented

Solicitor for the Respondent        Mr A Dillon, Australian Government Solicitor