Philippi and Defence Force Retirement and Death Benefit Authority
[2006] AATA 802
•20 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 802
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/954
DIVISION ) Re TREVOR PHILIPPI Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFIT AUTHORITY
Respondent
DECISION
Tribunal Senior Member Robin Hunt Date 20 September 2006
Place Sydney
Decision The tribunal sets aside the decision under review and, in substitution, the tribunal decides that Mr Philippi’s invalidity classification is 30% or more but less than 60%, Class B as at 21 February 2003. [SGD]
Ms Robin Hunt
Senior Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2004/954
GENERAL ADMINISTRATIVE DIVISION
)
Re
Trevor Philippi
Applicant
And
Defence Force Retirement and Death Benefit Authority
Respondent
DECISION (CORRIGENDUM) [2006] AATA 802
TribunalR Hunt, Senior Member
Date5 October 2006
PlaceSydney
WHEREAS:
1. The Tribunal published its Decision in this matter, which was dated 20 September 2006.
2. The Tribunal wishes to amend the Decision so as to rectify an omission. To do so with the least cost and inconvenience to the parties, the Tribunal exercises its power under s 43AA of the Administrative Appeals Tribunal Act1975.
3. Now the Tribunal therefore orders that the Decision of the Tribunal should read as follows:
Tribunal: Senior Member Hunt and Member Dr Campbell.
[SGD] R. Hunt
Senior Member
CATCHWORDS
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS - benefits and entitlements – invalidity benefit – prescribed impairment – percentage of incapacity in relation to civil employment – whether reclassification applicable.
Defence Force Retirement and Death Benefits Act 1973 ss 3, 30, 34 and 99
Defence Force Retirement v O’Fee Federal Court, 6 June 1985
Freeman v Defence Force Retirement and Death Benefits Authority Federal Court, 17 July 1985
REASONS FOR DECISION
20 September 2006
SUMMARY
1.Mr Philippi applied to the tribunal for review of a decision made on 21 January 2003 by a delegate of the respondent, the Defence Force Retirement and Death Benefits Authority. The delegate’s decision, made under s34 of the Defence Force Retirement and Death Benefits Act 1973 (the Act) determined that Mr Philippi’s percentage incapacity in relation to civil employment was 15%. Mr Philippi’s incapacity had previously been assessed at 30%. On the basis of the reassessment the delegate’s decision reclassified Mr Philippi from Class B to Class C on and from 21 February 2003.
2.On 16 February 2004 the decision of the delegate was affirmed upon reconsideration. The matter now comes before the tribunal. The tribunal has decided that Mr Philippi should continue to receive benefits on the basis that he is incapacitated at 30% in Class B. This means that he has established his claim under the review.
BACKGROUND
3.The factual circumstances that bring this matter before the tribunal can be set out quite briefly. Mr Philippi enlisted in the Australian Regular Army (the Army) on 23 September 1986. On 23 May 1999 Mr Philippi was medically discharged from the army, having attained the rank of sergeant. On 24 May 1999 Mr Philippi was classified as having an incapacity in relation to civil employment of 30% Class B under s 30 of the Act. His retiring impairment was described as ‘chronic instability right ankle’. The relevant kinds of civil employment that Mr Philippi could undertake were held to be ‘fireman, mobile plant operator, storeman and security officer’.
4.On 28 June 2000 a delegate of the Defence Force Retirement and Death Benefits Authority (the Authority) deferred review of Mr Philippi’s classification for a period of two years. On 4 October 2002 a delegate determined to have Mr Philippi medically examined for the purpose of reviewing his invalidity classification. On 21 January 2003 the Committee of Alternates determined that Mr Philippi should be re-classified pursuant to s 34 of the Act. The Committee determined that Mr Philippi should be reclassified from 30% incapacity Class B to 15% Class C with effect on and from 21 February 2003. The relevant kinds of employment Mr Philippi could undertake were determined to be fireman, mobile plant operator, storeman, security officer, clerk and truck driver. The prescribed impairment was determined as being chronic instability right ankle.
5.On 25 June 2003 Mr Philippi, via the Returned Services League, requested a reconsideration of the decision of 21 January 2003. On 16 February 2004 the decision of 21 January was reconsidered and affirmed.
ISSUES
6.The issue for the tribunal is whether it was right for Mr Philippi to be re-classified as having a Class C impairment or whether he should have retained his Class B classification.
CONSIDERATION
7.Section 34(1A) of the Act sets out that:
In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a recipient member…
the authority shall have regard to the following matters only:
a.the vocational, trade and professional skills, qualifications and experience of the recipient member;
b.the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
c.the degree to which any physical or mental impairment of the recipient member, being prescribed physical or mental impairment, has or had diminished the capacity of the recipient member 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.
8.Pursuant to the Federal Court decision in Defence Force Retirement v O’Fee Federal Court, 6 June 1985, the tribunal is constrained in what it can consider in determining an applicant’s incapacity for employment. In O’Fee McGregor J stated, at 15:
The only matters in which the respondent (and thus the AAT) may take into account in determining the percentage of incapacity – and ‘only’ those – are set out in s53(1A) [of the Defence Force Retirement Benefits Act 1948]… they do not include the ageing process or a depressed labour market or a state of employment or the shortage of employment for those who might engage in management.
9.Similarly, in the Full Federal Court decision in Freeman v Defence Force Retirement and Death Benefits Authority Federal Court, 17 July 1985, it was held that:
the matters specified in section 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.
The Act… looks only at the degree to which a member’s incapacity to undertake civil employment has been diminished: see ss30(2) and 34(1A). The Act itself takes no account of his actual earning capacity at a given time, although the fact that he is engaged in particular employment will be a relevant factor for the Authority to consider when determining his percentage of incapacity. But there may be cases where, although a member is employed, he is doing work with such difficulty or under such stress or circumstances that it is plain that he has not any real capacity for it. The fact that he is in employment may be due to the kindness of an employer or of fellow employees or both, or because of his ability, at least for the time being, to mask his disabling condition.
10.In Freeman Beaumont J also commented that the Authority cannot have regard to:
Merely collateral considerations notwithstanding their capacity to influence the member’s prospects of obtaining employment in a particular case.
11.It was agreed between the parties that Mr Philippi’s right ankle condition makes it such that he is unfit for walking distances, walking on uneven surfaces, climbing ladders or activities involving load-bearing.
12.It was further agreed between the parties that Mr Philippi should be assessed against the positions of clay processing factory hand, mobile construction plant operator, general clerk and supervisor, although representatives for Mr Philippi did note that he is more appropriately assessed by reference to the position of security officer.
The medical evidence of Dr Dowda
13.Dr Dowda, a consultant occupational physician, gave oral evidence to the tribunal and provided a report, dated 29 August 2005. Dr Dowda’s report was the only expert evidence presented to the tribunal which contained a gonimeter reading. The goniometer reading showed:
Left Ankle 0
Right Ankle 15 0
Dorsiflexion
20
35
Plantar flexion
35
70
Eversion
10
20
Inversion
15
30
14.Dr Dowda’s report described the nature of Mr Philippi’s right ankle thus:
The right ankle certainly has greater ranges of movement than the left ankle and while I do not consider the left ankle is restricted, the right ankle ranges of movement may be more than normal, suggestive of ligament laxity. Thus, chronic instability in the right ankle may be associated with ligament laxity. That ligament laxity with give way regularly occurring may slowly exacerbate or aggravate any arthritic change. P8 of Dr Dowda’s report.
15.Dr Dowda confirmed in oral evidence that the hyper-mobility was an objective clinical sign and that it confirmed and supported the history taken.
16.Dr Dowda, in his report, assessed Mr Philippi’s incapacity for civil employment as follows:
Clay processing factory hand: Large (greater than 60%).
The ability for Mr Phillipi to carry out the work that is required as a clay processing factory hand is limited by both the safety as well as the capacity related to his unstable right ankle. It is noted that the tasks require loading clay into machines, removing, trimming and stacking ceramic products, staking products on kiln cars, pallets or trolleys, moving kiln cars or trolleys to and from kilns, driers, sorting….These tasks are limited by the instability and associated pain in the right ankle. Not only would it present an impact upon his capacity to carry out such work, it would also impact upon his safety to carry out such work. He therefore is significantly impeded from carrying out the work…
Mobile construction plant operator [75%]
The heavy nature of this work as included in the tasks described under the ASCO listing makes it quite clear that there are physical requirements that inherently require loading the ankles. Getting into and out of operating equipment and servicing, lubricating, cleaning and re-fuelling equipment all would have their inherent problems with respect to the stability of his right ankle. Once seated within a mobile construction plant, the limitation that would be placed upon his physical activity would be the amount of right pedal work that might be required utilising that plant. Thus breaking with the foot or accelerating with the foot might be reasonably considered as a task that could cause exacerbation of symptoms in the right ankle. His incapacity therefore as working as a mobile construction plant operator is of a significant level and I would place this at large (greater than 60%) and again around 75% for the same reasons I have explained his incapacity as a clay processing factory hand. In fact, mobile construction plant operation might require more physical activity that could reasonably be considered aggravating or exacerbating the right ankle problem.
General clerk [0%]
I consider his ability to carry out such work that includes operating business machines, telephone equipment, recording, preparing, classifying and filing information, sorting, opening and sending mail, photocopying, documents, preparing reports of a routine nature, would all be well within his capacity and not be affected by his right ankle condition. I would rate his incapacity in this respect at minimal (less than 10%) and in fact 0%. He should be able physically (taking into account the injury to the right ankle only) of carrying out the full requirement of duties as a general clerk.
Supervisor – Store person [50%]
The part of the work that would require him to be based at a desk, carrying out desk based administrative tasks of a store person, would be fully within his capacities. However, that part of his work that would require him to examine stock and perhaps walk to stock or depending upon the nature of stock, clamber up on stock to examine it, or do the tasks of a store person would be outside his capacities. He would be able to do paperwork, checking goods and invoices, labelling goods but a requirement for him to operate machinery to lift, place and remove items on high levels (eg. Palletisers and pallet lifts) could still require him to be walking regularly on concrete floors and again the limitations placed upon him by the instability of his right ankle and the pain in the right ankle are significant in this respect. He would be able to carry out therefore about 50% of the work that would be required of a store person, that work being the basic semi-sedentary activities around the office, computer based and/or clerical activities associated with stock checking and filing, which would also be within the description of work as a supervisor. However, those specific physical activities associated with being a store person as described in the tasks listed in the ASCO listing for store person would reasonably be considered outside his capacity. In this sense I consider he would have a moderate incapacity to carry out work as a supervisor – store person, i.e. 30 to less than 60% and I would grade it at 50%.
17.In his report Dr Dowda assessed Mr Philippi’s overall degree of incapacity thus:
a.The overall employment types of clay processing factory hand, mobile construction plant operator, general clerk and supervisor store person is 50%.
b.The overall assessment expressed as a percentage for the degree to which [Mr Philippi’s] prescribed impairment diminishes his capacity to work in clay processing factory hand, mobile construction plant operator, storeman and security officer is 67% (if calculated for semi-sedan try security jobs) or 70% (if calculated for more ambulant security jobs…).
18.In giving oral evidence Dr Dowda was questioned by tribunal member Dr Campbell about the suggested remedy of strapping or special boots. Dr Dowda made a number of observations about the practicality and benefits of such a course.
19.Firstly, Dr Dowda said that strapping would have to be expertly applied and that this could lead to other problems, for instance dermatitis.
20.Dr Dowda then said that special boots or strapping could cause hypo-mobility, which would just as likely as not cause an opposite and equal problem.
21.Finally, Dr Dowda told the tribunal that he had assumed that boots would be worn for jobs such as mobile plant officer and other physical work of that kind and that he had taken this into account into his assessment.
The medical evidence of Dr Allman
22.Dr Allman, a consultant orthopaedic surgeon, gave oral evidence and provided the tribunal with three reports dated 29 November 2002, 9 December 2003 and 27 June 2005.
23.In his final report, tendered by the Respondent, Dr Allman assessed Mr Philippi’s incapacity for civil employment as follows:
In relation to ‘mobile construction plant operator’, and following my referral to descriptions outlined in minor group 7111, I wish to advise that from the descriptions provided I would expect that Mr Philippi’s ability to be effectively active in the occupation of ‘mobile construction plant operator’ would be diminished by a small amount of 10% in carrying out these tasks, with the understanding that in fact apart from driving and manipulating the machine, no particular physical activity such as running, walking long distances on hard surfaces or performing heavy physical lifting and carrying was involved.
In regard to Mr Philippi’s ability to perform tasks required for employment as a ‘storeman’, in consideration of the tasks listed in unit group 793 ‘store person’, it is my opinion that Mr Philippi’s ability to perform these tasks would be diminished also by a small amount, in this case in my opinion 15%, as even though no particular physical stress appears to be included in the description I would expect some degree of walking on hard concrete surfaces in a large storeroom would impart some discomfort and aggravation of his prescribed impairment (chronically unstable right ankle with early osteoarthritis).
In regard to the final occupation requested, that of a ‘security officer’ I wish to advise that in consideration of the tasks described in 8311-11, in my opinion Mr Philippi’s ability to pursue these tasks would be diminished by a moderate amount of 40% due to the fact that the tasks do not require a considerable amount of walking on hard surfaces and stairs and also to some extent would anticipate that they would also require some degree of running in terms of crowd control, dealing with suspects etc.
24.In his report of 27 June 2005 Dr Allman assessed Mr Philippi’s overall incapacity for civil employment as 26% (p5).
25.In oral evidence Dr Allman informed the tribunal that he had confined his assessment of Mr Philippi’s incapacity to the descriptions of the duties of the positions given to him by the respondent. Dr Allman accepted that:
If the surface was irregular or lumpy or sloping and [Mr Philippi] was carrying heavy objects or walking, or levering his foot [he would] aggravate his right ankle symptoms.
26.When questioned by the representative for Mr Philippi, Dr Allman also accepted the proposition that:
It would not be outrageous to give an assessment of 30.5%.
27.On being questioned by tribunal member Dr Campbell Dr Allman also observed that, in relation to a mobile plant operator position:
[it would] probably be wiser to upgrade that 10 per cent to something like 20 per cent.
28.Dr Allman, on re-examination by the respondent’s representative, told the tribunal that if, as a supervisor of store persons, Mr Philippi spent 70-80% of his time behind a desk, he would re-assess Mr Philippi’s incapacity in relation to this type of employment as 10%. He further told the tribunal that he would re-assess Mr Philippi’s incapacity for this type of employment if Mr Philippi had to climb over pallet and up ladders roughly 20-30% of the time.
Other medical evidence before the tribunal
29.The tribunal was also provided with reports of Dr Benanzio, orthopaedic surgeon, and Dr Mills, consultant physician in occupational medicine.
30.Dr Benanzio was unavailable to give evidence, however, in his report dated 20 February 2005, he opined that:
[Mr Philippi] is permanently unfit for activities involving standing or walking for long periods; negotiating steps, ladders or inclines; or walking on uneven ground.
31.In his report Dr Benanzio agreed that Mr Philippi’s incapacity to be employed as a fireman was large and agreed that his degree of incapacity for employment as a ‘heavy machinery operator’ and ‘storeman’ is moderate. He noted that depending on the types of duties required in performing these activities, the degree of incapacity could become large.
32.In assessing Mr Philippi’s overall incapacity for civilian employment Dr Benanzio reiterated his assessment that Mr Philippi’s chronic instability of the right ankle made it such that he is:
Unfit for activities requiring standing or walking for long periods, walking on uneven ground, or repeatedly negotiating steps, ladders or inclines.
33.Dr Mills’ report of 13 October 2005 stated that:
[Mr Philippi’s] condition should be largely overcome with the provision of appropriate footware [sic] and/or ankle support. [p 1 Dr Mills’ report]
34.Dr Mills assessed Mr Philippi’s incapacity for civilian employment thus:
Clay processing factory hand [60%]
I would consider that Mr Philippi has greater than 60% incapacity for working as a Clay processing factory hand, due to his inability to repetitively squat and climb, and difficulties he would have with heavy lifting, heavy pushing and pulling, and with prolonged standing.
General Clerk [More than 30%]
I would assess that Mr Philippi has less than 30% incapacity, as these duties are mostly within his medical restrictions.
Mobile Plant operator (No descriptor available in documentation) [More than 30% but less than 60%]
I would consider that Mr Philippi has more than 30% but less than 60% incapacity, due to his inability to repetitively squat and climb, and difficulties he would have with heavy lifting, heavy pushing and pulling, and with prolonged standing.
Mobile construction plant operator [More than 30% but less than 60%]
I would consider that Mr Philippi has more than 30% but less than 6-% incapacity, due to his inability to repetitively squat and climb, and difficulties he would have with heavy lifting, heavy pushing and pulling, and with prolonged standing.
Storeperson (no descriptor available in documentation) [30%]
I would consider that Mr Philippi has less than 30% incapacity, as these duties are mostly within his medical restrictions.
Supervisor, store person [30%]
I would consider that Mr Philippi has less than 30% incapacity, as these duties are mostly within his medical restrictions.
Security guard (no descriptor available in documentation) [More than 30% but less than 60%]
I would consider his likely impairment for these duties to be more than 30% but less than 60%.
CONCLUSION
35.The majority of the medical opinions before us assess Mr Philippi as having in excess of 30% incapacity, Drs Dowda, Mills and Benazio all have reached this conclusion although there are some variations regarding particular occupations and tasks. Lastly, Dr Allman, while assessing Mr Philippi’s incapacity at 26%, gave oral evidence that assessment at 30.5% was not outrageous. We have found no reason to disagree with assessment of at least 30%. It follows that we conclude that Mr Philippi should continue to be assessed as having in excess of 30% incapacity for civilian employment.
36.The prescribed physical impairment which Mr Philippi has, that is, chronic instability right ankle, imposes a degree of incapacity on him in relation to civil employment that he could undertake. The medical opinions before us considers his degree of incapacity as a clay processing factory hand, mobile construction plant operator, general clerk or “supervisor – store person”, with the highest levels of that incapacity relating to work as a clay processing factory hand or mobile construction plant operator. The process of assessment of the extent of Mr Philippi’s incapacity is not mathematical in nature but one associated with a value judgement. We are satisfied that, overall, the level of Mr Philippi’s incapacity can be described as moderate and such as would fall within the 30% to 60% range with the appropriate percentage allocation being in excess of 30%.
37.Having regard to the matters in paragraphs 34(1A)(a), (b), (c) and (d) of the Act, we are satisfied that the level of incapacity of Mr Philippi for civil employment for the purposes of sub-section 34(1) should not be varied and that the appropriate classification in accordance with the terms of sub-section 30(1) of the Act is Class C.
38.For the reasons above we are satisfied that the decision under review should be set aside and, in substitution, we find Mr Philippi has in excess of 30% incapacity for civil employment but less than 60% and should be classified as having 30% or more (Class B) incapacity from 21 January 2003.
DECISION
39.The tribunal sets aside the decisions under review and, in substitution, the tribunal decides that Mr Philippi’s invalidity classification is 30% or more but less than 60%, Class B as at 21 January 2003.
I certify that the 39 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 14/7/2005, 15/7/2005, 7/4/2006, 10/4/2006
Date of Decision 20 September 2006
Counsel for the Applicant Cameron Jackson
Solicitor for the Applicant Brian Winship
Counsel for the Respondent B. Dube
Solicitor for the Respondent Briony Eales
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