Redenbach and Commonwealth Superannuation Corporation
[2019] AATA 4147
•4 October 2019
Redenbach and Commonwealth Superannuation Corporation [2019] AATA 4147 (4 October 2019)
Division:GENERAL DIVISION
File Number(s): 2016/2177
Re:Robert Redenbach
APPLICANT
AndCommonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:4 October 2019
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]...........................................
Senior Member Theodore Tavoularis
Catchwords
DEFENCE – Defence force retirement and death benefits – classification in respect of incapacity – percentage of incapacity – where Applicant classified as Class C – assessment as to the degree of physical or mental impairment causing invalidity in diminishing the capacity of the Applicant to undertake kinds of civil employment – whether Applicant should have been assessed as having a higher percentage of incapacity – assessment of degree of impairment and percentage of incapacity at time of discharge – decision under review affirmed
Legislation
Defence Force Retirement and Death Benefits Act 1973 (Cth)
Cases
Defence Force Retirement and Death Benefits Authority v House (1989) 22 FCR 138
Fury and Defence Force Retirement and Death Benefits Authority [2005] AATA 382Re Thompson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
Contents
Reasons for decision
Introduction
Background
Consideration
Section 30(2)(a): Skills, qualifications and experience
Section 30(2)(b): the kinds of civil employment
Section 30(2)(c): the diminished capacity to undertake employment
Question One: What were the s 26 impairments?
Question Two: Ascertaining the degree the s 26 impairments have or had on the Applicant’s capacity to undertake employment
Dr McQueen – Orthopaedic Surgeon
Cross-examination of Dr McQueen
Dr Saxby – Orthopaedic Surgeon
Cross-examination of Dr Saxby
Dr Burke – Occupational Physician
Cross-examination of Dr Burke
Dr Ward – Sports Medicine Consultant
Findings about Section 30(2)(c): the diminished capacity to undertake employment
The Medical Evidence
The Applicant’s Employment History
Assessing the percentage of incapacity in the context of s 30
Findings
Decision
Annexure A………………………..……………………………………………………………..46
REASONS FOR DECISION
Senior Member Theodore Tavoularis
4 October 2019
INTRODUCTION
On 23 December 2014, a delegate of the Commonwealth Superannuation Corporation (“CSC”) made a decision[1] pursuant to s 30 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (“the DFRDB Act”) that the Applicant’s percentage of incapacity in relation to civil employment with effect from 20 September 1987 was “small” (i.e.10%). Accordingly, the Applicant received a classification of “Class C” for the purposes of s 30 of the DFRDB Act. On 15 April 2016, the Defence Force Case Assessment Panel (“DFCAP”) affirmed[2] the earlier decision of the delegate of the CSC dated 23 December 2014. The Applicant now seeks review of the DFCAP decision of 15 April 2016.
[1] Exhibit 3, s37 T Documents, T31, pages 186-192.
[2] Ibid, T46, pages 249-259.
Both parties were (with respect) very ably represented by Counsel in the hearing before me. In terms of documentary material received into evidence, 12 exhibits were tendered,[3] ranging from the parties’ respective Statements of Facts, Issues and Contentions, the mandatory Tribunal (or “T”) Documents, the Applicant’s army records of service and an array of medical opinions and reports. The hearing received lay oral evidence from the Applicant himself and expert oral evidence from (1) Dr Andrew McQueen (orthopaedic surgeon); (2) Dr Terrence Saxby (orthopaedic surgeon); and (3) Dr Nicholas Burke (consultant occupational physician).
[3] See exhibit list attached to these Reasons and marked “Annexure A”.
BACKGROUND
The Applicant is presently aged 55 years. His date of entry into the Australian Defence Force (“the Army”) was 17 June 1981. His date of discharge was 19 September 1987. The grounds of his discharge/retirement were determined to be:
(i)Pes planus; and
(ii)Left knee posttraumatic osteoarthritis.[4]
[4] Exhibit 3, s 37 T Documents, T46, page 254.
Following his discharge, the Applicant sought to re-enlist with the Army. By letter dated 21 March 1991, the Applicant was advised that his application for re-enlistment had been unsuccessful. That letter said:
“…for the reasons given by the Medical Officer, you do not meet the high medical standards required for entry to the Australian Regular Army.”[5]
[5] Ibid, T35.2, page 205.
The Applicant appealed this decision but that appeal, as well, was unsuccessful. By letter dated 12 August 1991, the Applicant was told:
“…
The medical documentation from your day of testing at this centre, together with the medical certificates supplied by your doctor, was passed to our medical authority for a re-assessment of your medical suitability. I regret to inform you that the appeal has been dismissed based on all the available information that was presented. You are still considered below the acceptable medical standards for enlistment.
…”[6]
[6] Ibid, T35.1, page 204.
The material reveals (and it is common ground between the parties) that the Applicant made an application for an “invalidity benefit” on 5 November 2014. Pursuant to s 30 of the DFRDB Act, the Respondent determined the Applicant’s “percentage of incapacity” on 15 April 2016. Applying the table appearing in s 30(1) of the DFRDB Act, the Respondent determined (or classified) the Applicant as a “Class C” with an accompanying percentage of incapacity of less than 30%.[7]
[7] Ibid, T46, pages 249-259.
On 26 April 2016, the Applicant filed the instant application seeking review of the Respondent’s classification decision of 15 April 2016. In order to determine the percentage of incapacity of a member for the purposes of s 30(1) of the DFRDB Act, s 30(2) of that Act stipulates that the Respondent:
“…shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the member;
(b)the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c)the degree to which the physical or mental impairment of the member that caused the invalidity or physical or mental incapacity because of which he or she was retired has or had diminished the capacity of the 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 sub-section”
Although the Applicant was classified as “Class C” upon retirement pursuant to s 30 of the DFRDB Act, the Respondent is nevertheless empowered, by virtue of s 34 of the DFRDB Act, to, from time to time, re-classify the member (i.e. the Applicant) in either of the two categories appearing in s 30 according to the percentage of the member’s incapacity in relation to civil employment.
However, s 34 of the DFRDB Act does not apply where the member is initially classified as “Class C” on retirement and is not entitled to invalidity pay. In those circumstances, s 34(5) of the DFRDB Act actually denies later classification of a member as “Class B” or “Class A”. In the instant application, the Applicant seeks review of the reconsideration decision that affirmed his entitlement to a “Small” 10% “Class C” pension pursuant to s 30 of the DFRDB Act. This is why the Tribunal, in this review, can only consider the Applicant’s incapacity for the kinds of civilian employment as at the date of his retirement from the Army in September 1987.
The outcome of conducting that exercise, contends the Applicant, should be as follows:
“Overall, considering the width, quality and nature of the range of employment opportunities available…and making a value judgment, the applicant submits that, at a minimum, he was incapacitated to at least 30% for the kinds of civil employment which the applicant might reasonably have undertaken and that the Tribunal ought to decide accordingly. Further, considering the restrictions on the applicant in many kinds of civilian employment which he might reasonably have undertaken – and, particularly the prospect of failure at long-term, ongoing employment – the Tribunal ought to decide that the applicant’s incapacity was, in effect, at least 60%.”[8]
[8] Exhibit 12, Applicant’s Outline of Submissions, dated 9 March 2018, page 11, paragraph [65].
CONSIDERATION
The primary issue for determination in this application thus becomes the extent of the Applicant’s incapacity in relation to civil employment as at 20 September 1987, that being the day immediately following the Applicant’s retirement from the Army. As mentioned above, s 30(2) requires the Respondent, and now the Tribunal, to have regard only to the factors (a) – (d) of that subsection. As I recall the respective submissions, neither party contended for any application of factor (d) of s 30(2).
The exercise of retrospectively determining an Applicant’s degree of incapacity for civil employment at the time of their retirement from the Army some 32 years after such retirement “…will inevitably be difficult.”[9] While a decision maker’s initial inclination will be to base such a determination on what this Applicant has been able to do by way of civil employment since his retirement from the Army in September 1987, such post-retirement employment history:
“…can be taken into account, but only to the extent that such evidence can be related back to and throw light on the applicant’s state of health and any incapacity as at the earlier date: see Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58 [sic]. The Tribunal must, ultimately, “…address the same question as was before the primary decision maker” in the decision under review – namely, what was the percentage incapacity of the applicant for civil employment in [September 1987]…”[10]
[9] Fury and Defence Force Retirement and Death Benefits Authority [2005] AATA 382 at paragraph [15] (“Fury”).
[10] Ibid.
SECTION 30(2)(A): SKILLS, QUALIFICATIONS AND EXPERIENCE
The Applicant has provided a helpful summary[11] of the Applicant’s vocational, trade and professional skills, qualifications and experience as at the date of his retirement from the Army on 19 September 1987. The relevant skills, qualifications and experience comprise:
[11] See Exhibit 4(a), Applicant’s Further Amended Statement of Facts, Issues and Contentions (‘SFIC’), dated 6 September 2017, paragraphs [73]-[82].
·Completion of Year 10 secondary schooling;
·Salesperson and kitchen hand;
·Work at “Alpine Ash Building Supplies” from 11 December 1979 to May 1980 involving duties of loading and unloading building supplies from trucks and assisting in the distribution and sales of building supplies;
·Work at “Willie Oldfield” from June 1980 to August 1980 as a fishing boat deck-hand involving duties of baiting hooks, emptying nets and cleaning fish;
·Working as a builder’s labourer from September 1980 to December 1980 involving duties such as digging ditches, mixing cement and carrying timber;
·Work at the “Glenora Hotel” from January 1981 to March 1981 involving duties such as cleaning dishes and emptying rubbish;
·In-service employment with the Army from December 1981 until March 1986 involving duties such as:
oInfantry Rifleman (from December 1981 to September 1984);
oInfantry Section: second in command (from October 1984 to November 1985); and
oInstructor (infantry minor tactics and small arms instructor) from December 1985 to March 1986;
·Completion/obtaining of secondary school senior certificate in December 1986.
It was pointed out on behalf of the Applicant that Dr Burke’s reference to him having worked as a train or tram conductor for VicRail was made in error and that the Applicant had never undertaken such employment with VicRail or any similar entity.[12]
[12] Ibid, paragraph [82].
In the final analysis, there seems to be no controversy between the parties about the nature and extent of the Applicant’s vocational, trade and professional skills, qualifications and experience as at the date of discharge. The Respondent’s representative said in closing oral submissions “For the purposes of these proceedings, we’ve moved forward on the basis that there’s no issue in relation to subsection 2(a) and (b), no controversy about those things. There’s no controversy about what the particular injuries are…”[13]
[13] Transcript, Day 2, page 110, lines 27-29.
Given the absence of any disagreement between the parties about this factor (a), I find that the abovementioned summary at paragraph 13 of these Reasons represents the vocational, trade and professional skills, qualifications and experience of the Applicant.
SECTION 30(2)(B): THE KINDS OF CIVIL EMPLOYMENT
This involves a determination of the kinds of civil employment that a person with the Applicant’s skills, qualifications and experience might reasonably be expected to undertake (leaving aside the impairment) as at the date of his retirement from the Army, that date being 19 September 1987.
Guidance as to the correct approach to the interpretation of this factor (b) is provided by the Full Court in Defence Force Retirement and Death Benefits Authority v House.[14] Factor (b) requires consideration:
“…not of employment the member has followed or would be likely to follow, but of the kinds of civil employment which a person with the skills, qualifications and experience identified in [factor (b)] might reasonably undertake. The words ‘kinds’, ‘might’ and ‘reasonable’ all indicate that a narrow view is not to be taken…an individual is likely to have open to him a wide range of employment opportunities of various kinds. The sub-section does not narrowly scrutinise one example of the kinds of employment open in particular circumstances. For example, if a man can operate a backhoe, it would be wrong to think of backhoe operation as the kind of employment open to him – it is rather a specific example of a kind of employment which includes the operation of post hole-diggers and a host of other pieces of equipment.”[15]
[14] 22 FCR 138. see also Fury at paragraph [20].
[15] ibid, page 141.
The Full Court added:
(i)“…the primary question posed by [factor (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’,”[16]; and
(ii)“One thing which is abundantly clear is that [factor (b)] does not restrict a member to the employments in which he is now engaged in his impaired state.”[17]
[16] ibid. See also Fury at paragraph [21].
[17] Ibid. See also Fury at paragraph [22].
In the decision under review, the Delegate of the Respondent decided on 15 April 2016[18] that the Applicant had capacity to undertake the types of employment listed as follows:
[18] Exhibit 3, s 37 T Documents, T46, pages 256-257.
Job Title
Tasks/Duties Required
Capacity to undertake duties of civilian employment type as at September 1987
Labourer
Up to very heavy physical demand levels…
Lifting, carrying, pulling or pushing is frequently to constantly required…
Stretching up or across is occasional to frequent requirement, depending upon the specific work tasks being undertaken…
Contact with skin irritants or water will be occasional given the varied tasks and likely physical contact with a wide range of physical substances and materials…
Uses a wide range of hand tools…
…immediately following his discharge, Mr Redenbach engaged in employment as a Salesperson, Security Guard and Upholsterer.
Taking this into consideration, DFCAP was satisfied that Mr Redenbach would have been incapacitated to a small degree in undertaking the duties of a Labourer.
Prison and Security Officer
Medium physical demand level and frequently stands and walks about and may sit…
Lifting, carrying and holding may be required on an occasional basis, particularly in control and restraint situations. Repetitive hand movement is likely when entering data into a computer.
There are some roles in which driving is required (for example, Court supervision)…
Mental skills necessary include assessment, computing, communication, decision-making, report writing…
…DFCAP was satisfied that Mr Redenbach would have been able to perform the required duties of the role with little difficulty and would be incapacitated to a small degree.
Clerical and Administrative Worker
Sedentary role…
Repetitive arm, hand and finger movements are constant for data entry and word-processing tasks…
Mental skills necessary include a sound level of keyboarding, recording, organisation and communication.
…DFCAP was satisfied that Mr Redenbach would have been incapacitated to a small degree in undertaking the duties of a Clerical and Administrative Worker.
The Applicant’s representative said this in closing oral submissions:
“…There doesn’t appear to be any controversy about s 30(2)(b). As a matter of completeness I note in the respondent’s further statement of facts, issues and contentions there is a reference included there to materials but they don’t, in any way, set out the particular vocation, trade and professional skills, qualifications and experience of the applicant. The applicant’s statement of facts, issues and contentions do but that’s all, in a sense, academic because there’s no disagreement between the parties as to 30(2)(b).”[19]
[19] Transcript, Day 2, page 82, lines 42-46, and page 43, lines 1-2.
In a similar vein, the Respondent, at some length, confirms this absence of controversy by fulsomely reviewing the Applicant’s work history and referring specific facets of that work history to the three agreed areas of civil employment comprising: (1) Labourer, (2) Prison and security guard and (3) Clerical and administrative assistant.
I therefore find that in September 1987, the hypothetical person with the skills, qualifications and experience that the Applicant had, as described above, might reasonably be expected to undertake employment in the categories of Labourer, Prison and security guard, and Clerical and administrative worker.
SECTION 30(2)(C): THE DIMINISHED CAPACITY TO UNDERTAKE EMPLOYMENT
It is pertinent to make some preliminary comments before making findings about this third limb. As observed by the Respondent’s Counsel in closing submissions, an assessment of the degree to which a physical or mental impairment – identified some 32 years ago – has diminished a person’s capacity to undertake employment in a given field or fields is, by the very nature of the retrospective exercise, a completely artificial one.
The Tribunal can only have regard to the medical and other evidence available to it. In addition to this temporal element, there is also a definitional element to be borne in mind when assessing the necessary “degree” for the purposes of s 30(2)(c) of the DFRDB Act. As also observed by Counsel for the Respondent in closing submissions:
“…there must be care not to conflate the injury with incapacity. So for example it’s clear that one can have an injury but be asymptomatic, so one can have an injury but have no incapacity; equally you can have an injury and be symptomatic and have a level of incapacity.”[20]
[20] Ibid, page 111, lines 2-5.
To make findings about the effect of s 30(2)(c) on a given factual matrix requires the Tribunal to address two questions. First, it is necessary to identify the Applicant’s retiring impairments pursuant to s 26 of the DFRDB Act. Second, it is necessary to determine what degree those s 26 impairments have or had diminished the capacity of the Applicant to undertake the kinds of civil employment referred to in s 30(2)(b) as at the date of discharge, that date being 19 September 1987.
Question One: What were the s 26 impairments?
The reviewable decision makes it clear that the Applicant’s impairments as at the date of discharge were pes planus and left knee posttraumatic osteoarthritis.
As I recall the evidence and submissions, there was no significant contest about the Applicant’s “retiring impairments”. As is made clear in the Applicant’s written material:
“…the applicant’s first Section 26 Impairment is “bilateral foot condition”…
…the Applicant’s second Section 26 Impairment is “post traumatic osteoarthritis” of his left knee.”[21]
[21] Exhibit 4(a), Applicant’s Further Amended SFIC, dated 6 September 2017, page 13, paragraphs [94] and [97].
There also seemed to be some propounding of the apparent effects of the Applicant suffering from dyslexia and the impact of that condition upon the Applicant’s ability to undertake clerical or administrative work. Dr Burke makes reference to the Applicant’s dyslexia in his report and says these things:
“Dyslexia would undoubtedly impact upon any activities that do require significant amounts of reading or comprehension of reading and writing. In simple clerical positions I do not believe there would have been a major impact. However, as he progressed through the ranks and obtained promotion and moved into more cognitively demanding positions, then the dyslexia may have impacted on his ability to maintain certain clerical positions.”[22]
[22] Exhibit 4(f), Report of Dr Burke, Occupational Physician, dated 30 August 2017, page 13, paragraph [14].
In my view, the abovementioned opinion of Dr Burke about the Applicant’s dyslexia has little or no application to the present and artificial exercise of determining the Applicant’s capacity to, for example, perform clerical work in the event “…he progressed through the ranks and obtained promotion and moved into more cognitively demanding positions…” The fact that the Applicant never proceeded through the ranks of military service in this theoretical way does not impact upon the artificial exercise required to be performed for the purposes of s 30(2)(c).
I have misgivings about the effect of the asserted dyslexia upon the Applicant’s capacity to perform “reading and writing” tasks in circumstances where, post-service, he has (1) authored numerous books; (2) derived a living from motivational lectures; and (3) authored and explained defence-based techniques to high level authorities in the national security area. In the final analysis, dyslexia is not a retiring impairment and I consider that it is not relevant to the issues for determination in this matter.
I therefore find that the Applicant’s impairments for the purposes of s 26 of the DFRDB Act were pes planus and left knee posttraumatic osteoarthritis.
Question Two: Ascertaining the degree the s 26 impairments have or had on the Applicant’s capacity to undertake employment
Prior to making findings on the question of capacity/incapacity, it is necessary to conduct a review of the medical evidence. As mentioned earlier, the Tribunal received oral evidence from Drs McQueen, Saxby and Burke. I will address each of their evidence in turn.
Dr McQueen – Orthopaedic Surgeon
Dr McQueen has prepared four reports regarding this Applicant. They are respectively dated 12 August 1988, 3 March 2015, 30 March 2015 and 27 April 2016. In his first report dated 12 August 1988 – less than a year after the date of discharge - Dr McQueen noted these things about the history of the Applicant’s knee injury:
“HISTORY:
Evidently in August 1985 he landed awkwardly parachute jumping whilst in the Army. He had pain in his knee, was assessed with an X-ray and told he had a ligament injury. For the next 12 to 18 months he had episodic locking of the knee and for the last 12 months had been satisfactory until six weeks prior to consultation when he began a new job that involved standing and caused increased pain but no locking.
EXAMINATION:
At that time revealed tenderness in the lateral joint line, a negative McMurray’s test, a stable patella and no effusion.
X-rays were normal.
MANAGEMENT:
I considered he had features of a meniscal tear, possibly on the lateral side. I proceeded to perform an arthroscopic meniscectomy at Victoria House Private Hospital on the 27 July 1988. This showed articular cartilage damage in the lateral compartment with chondrified impinging fat pad. The fat pad was resected, but it was not possible to offer any operative treatment of the articular cartilage damage in the lateral compartment.
When subsequently reviewed he was making good progress with his exercise programme.
OPINION:
This man suffered a significant injury to the lateral compartment of his left knee at the time of his accident in 1985. I believe that the recent surgery will control the number of symptoms, however he has significant degenerative change and may require a future procedure such as arthroscopy or, in the long term, a tibial osteotomy.
…”[23]
[my underlining]
[23] Exhibit 3, s37 T Documents, T22, pages 115-116.
Dr McQueen’s second report is dated 3 March 2015, and notes the following:
“…
Present Complaints
When I saw him on 2.3.2015 he was experiencing ongoing symptoms due to the arthritis in his left knee. He had been treated with Synvisc with some improvement however he experienced pain when walking up and down stairs and sensations of instability giving way and night pain as well as recurrent effusions.
Examination:
Examination confirmed the arthritic changes.
MRI documented significant arthritic changes in the knee secondary to his trauma.
Management:
In my opinion his left knee injury occurred whilst in the army as documented.
He has significant post-traumatic arthritis as a result of that injury and will require significant treatment in the future such as repeated Synvisc injections, possibly repeated arthroscopies and ultimately, a total knee replacement.
…”[24]
[emphasis in original]
[24] Ibid, T36, page 210.
Dr McQueen’s third report is dated 30 March 2015. It says these things:
“Further to my letter of 3.3.2015 I have discussed Mr Redenbach’s medical condition with him.
I would like to add the following comments to this.
1/ Due to the condition of his knee as a result of the injury in the army he would not have been able to pursue a labouring type job, that is, excessive lifting, standing and prolonged walking.
2/ If he had done a heavy labouring job it would have exacerbated the arthritic process in his knee.
3/ With regard to the category of disability, in my opinion he is class B incapacity, that is, 30-59% incapacitated.
…”[25]
[my underlining]
[25] Ibid, T41, page 236.
Dr McQueen’s fourth report is dated 27 April 2016, and notes the following:
“…
Thank you for requesting a further comment regarding my previous report and the response from the Veteran Affairs Department.
In my opinion the significant degenerative change of the left knee was long standing related to the injury in August 1985 – That is it took some years to progress from that injury.
This was noted at the time of arthroscopy on 27 July 1988.
…”[26]
[26] Exhibit 10, Report of Dr McQueen, 27 April 2016.
Cross-examination of Dr McQueen
Dr McQueen was referred to the first of his four reports, dated 12 August 1988. He was specifically taken to the portion of his report that says “For the last 12 months had been satisfactory until six weeks prior to consultation.” The following exchange then ensued between Counsel for the Respondent and Dr McQueen in cross-examination:
“MR SCHULTE[27]: Now, when you’ve used the word ‘satisfactory’ there, what were you intending to convey?
[27] Mr Richard Schulte, Counsel for the Respondent.
DR MCQUEEN: Well, I would normally use that to say that his knee was functioning satisfactorily with no specific symptoms or complaints. I don’t have my handwritten documents anymore because that’s 30 years back but I think that’s the context I would use the word ‘satisfactory’,
MR SCHULTE: So, Mr Redenbach hadn’t made any complaint, for example, about his knee?
DR MCQUEEN: I would assume so during that period of time, yes.
MR SCHULTE: Thank you. Would you also say that it had been functioning reasonably?
DR MCQUEEN: Well, I presume that’s what I documented as being satisfactory, yes.
MR SCHULTE: Yes, thank you. Now, the next question I’ve got just there is in that very last part of that sentence, you say ‘caused increased pain but no locking’?
DR MCQUEEN: Correct.
MR SCHULTE: Can you explain the significance of the locking and the reference to the locking?
DR MCQUEEN: The locking suggest [sic] the mechanical problem in the knee, either a torn meniscus cartilage or some of the lining of the joints catching or loose pieces in the joint, which we call loose bodies. So, in other words, the mechanical issue inside the knee.
MR SCHULTE: So, it is fair to say that the presentation was really only one of pain, it wasn’t one of the mechanical difficulties with the knee?
DR MCQUEEN: Correct.
MR SCHULTE: Now, in relation to the examination that you performed there, there’s reference to a negative McMurray’s test. What does that mean?
DR MCQUEEN: Well, it’s looking for evidence – the McMurray’s test is looking for evidence of a mobile fragment of the meniscus, the cartilage, that’s a recognised test for that, that he was tender over the lateral joint line, the outside of the joint.
MR SCHULTE: I see. The next question I had was the comment that’s made right at the very end of that page where you say that he was making good progress with his exercise program. I gather that you have a particular exercise program that you recommend for your patients?
DR MCQUEEN: Yes, after an arthroscopy the physiotherapist gives me a program of exercises, quadriceps flexion exercises to do and the patient takes that program with them and they follow along that for a few weeks after arthroscopy.
MR SCHULTE: I see. Now, the other thing that I just wanted to raise with you is that when you’re dealing with your patients, and certainly in this kind of situation or in Mr Redenbach’s situation, it’s the case, isn’t it, that you didn’t seek to actually limit what he could and couldn’t do?
DR MCQUEEN: Not to my knowledge, no.
MR SCHULTE: So, you weren’t recommending what he could, and couldn’t do, at that particular time?
DR MCQUEEN: It depends. It’s not documented in the opinion over the page but based on the fact that he had some chondral damage, in other words some arthritic change, or degenerative change, I probably would have indicated to him to avoid a lot of impact activities but I can’t – that would be my standard recommendation under those circumstances.
MR SCHULTE: I see. This is just in terms of a lay understanding of osteoarthritis, is it fair to say that osteoarthritis is a condition that gets worse with time?
DR MCQUEEN: Correct, yes.
MR SCHULTE: The other general question I had, Dr McQueen, was in ordinary circumstances would pain in someone’s knee be something that was revealed during the course of a general physical examination?
DR MCQUEEN: Yes, in the sense that if you palpate or put pressure on a tender area, or a damaged area of the knee such as a torn cartilage, then that would cause a patient pain and they would complain about that at the time.
…”[28]
[28] Transcript, Day 2, page 68, lines19-47, and page 69, lines 1-32.
Dr Saxby – Orthopaedic Surgeon
Dr Saxby has provided two reports in relation to the Applicant. They are respectively dated 20 July 2017 and 17 August 2017. The first of those reports commences with the observation that Dr Saxby did not examine or take a history from the Applicant. His report “…is based solely on review of the various reports forwarded to me. I will confine my report therefore to the specific instructions from the solicitors.”[29]
[29] Exhibit 4(d), Report of Dr Saxby, dated 20 July 2017, page 1.
The first of Dr Saxby’s two reports comprises a series of answers to 13 specific questions put to him. In summary form, the questions and Dr Saxby’s answers can be stated thus:
“1. Any comments you wish to make on the extent of Mr Redenbach’s injuries to both feet and his left knee as at the date of discharge, being 19 September 1987.
With regards to his left knee. I believe this question is best assessed in the report of Dr Andrew McQueen dated 12.8.88…
With regards to this gentleman’s feet. I believe the report of Dr Richard Ward dated 3.5.89 best addresses this gentleman’s foot problems. In this report, Dr Ward states that this gentleman had pre-existing flat feet (that is to say they were present at the time of enrolment), and that Mr Redenbach’s feet became more symptomatic during his service in the Defence forces. Dr Ward postulates that his employment has aggravated his pre-existing condition of bilateral pes planus and Hallux valgus deformity…
2. Any comments you wish the make about what the briefed documents which post-date of discharge (19.9.87) reveal about the extent of Mr Redenbach’s injuries to both feet and his left knee as at the date of discharge, being 19.9.87.
As indicated above, the two documents that provide the most insight about the extent of this gentleman’s injuries have been detailed in question 1.
3. Whether you consider that what Dr McQueen reports about Mr Redenbach’s left knee in his report dated 12 August 1988 is a continuation of the impairment affecting Mr Redenbach at the date of discharge (19.9.87), being left knee post-traumatic osteoarthritis. If so, please state your reasons. If not, why not.
I believe that Mr Redenbach suffers from left knee post-traumatic osteoarthritis and Dr McQueen makes it clear in his report that this gentleman suffered a significant injury to his left knee and will require ongoing treatment…
…
6. Whether you consider that what Dr Richard Ward reports about Mr Redenbach’s feet in his report dated 3 May 1989 is a continuation of the impairment affecting Mr Redenbach at the date of discharge (19.9.87) being pes planus. If so, please state your reasons. If not, why not.
It would appear once again, as in Dr Ward’s report, that this gentleman has bilateral pes planus which states in the history that this was a pre-existing condition. Therefore, I believe that Mr Redenbach’s previously asymptomatic pes planus had become symptomatic during his service in the Defence forces, and once again, there appears to be no evidence to contradict Dr Ward’s report.
7. Whether you agree with the assessment of Mr Redenbach’s bilateral foot injuries as stated by Dr Ward in his report dated 3 May 1989. If so, please state your reasons. If not, why not.
Once again, without any evidence to the contrary, I would defer to Dr Ward’s report and believe that it is quite likely that this gentleman did have pre-existing asymptomatic pes planus which has become symptomatic with a high level of physical activity.
8. Whether you consider what Dr Ward stated in his report dated 3 May 1989, namely that Mr Redenbach’s foot condition was permanent, was correct or likely to be correct as at the date of Dr Ward’s report.
It is difficult to be certain of this. Dr Ward may have formed the opinion that this gentleman’s aggravation of his pre-existing pes planus may be permanent but the only way to be certain is for this gentleman to be followed over time to see, once the high level of activity has ceased, whether he would return to his pre-existing condition, which was relatively asymptomatic pes planus. Therefore, I believe it is difficult to make an assumption at that stage that the condition was likely to be permanent.
...
13. As at the date of discharge, 19.9.87, was Mr Redenbach fit for full time employment as:
(a) Labourer
(b) Prison and Security Officer
(c) Clerical and Administration Worker.
At the time of discharge, I believe that this gentleman would be fit for the above positions, but with time, as his post-traumatic arthritis progressed with time, I believe he would have more and more difficulty performing work as a labourer, prison or security officer. I would have expected however that he would have been able to continue work in a clerical or administration position…”[30]
[my underlining]
[30] ibid, pages 1-4 and page 7.
Dr Saxby’s second report, dated 17 August 2017, reveals the following:
“Questions
1. In response to ques6tion [sic] (4) in your first report you state that it is “In Dr McQueen’s report of 12.8.88 which details this gentleman’s injury”. Can you please state whether, at the date of discharged [sic] (being 19.9.87), Mr Redenbach was suffering left knee post traumatic osteoarthritis?
I believe that Mr Redenbach was suffering from left knee post-traumatic osteoarthritis at the time of his discharge (that being 19.9.87).
2. In response to question (3) at your first report, you state “I believe that Mr Redenbach suffers from left knee post-traumatic osteoarthritis.” Insofar as you have not answered this question already at question (1), can you please state when it is probable that Mr Redenbach started suffering left knee post traumatic osteoarthritis?
I believe that Mr Redenbach’s knee arthritis began with his injury in 1985. That is to say that it was the injury to his knee in 1985 that was the initiator of the damage to his knee and over time, he has developed post-traumatic arthritis of his knee which has gradually deteriorated with time.
3. If the arthroscopy performed by Dr McQueen in 1988 was performed, instead, at the date of discharge (being 19.9.87), do you expect it probable that left knee post-traumatic osteoarthritis could have been diagnosed?
I would expect that if Mr Redenbach underwent an arthroscopy at the date of discharge (19.8.87) rather than in 1988, I believe the findings would have been similar and the diagnosis of post-traumatic arthritis of the left knee would also have been made at that stage.
…
5. What do you consider to be the causation of Mr Redenbach’s left knee post traumatic osteoarthritis? Is there anything between the date of discharge (19.9.87) and date of diagnosis in 1988 to break the chain of causation?
The answer is no. As far as I can tell there is no evidence of a further injury between September 1987 and 1988.
6. Is there anything between the date of discharge (19.9.87) and date of Dr Ward’s assessment in 1989 to break the chain of causation of Mr Redenbach’s symptomatic pes planus (see your first report at page 3)?
Once again, there is no evidence supplied to me that would indicate a further cause for this gentleman’s development of symptomatic pes planus.”
Dr Saxby was asked about whether, as at the date of discharge (19 September 1987), he would recommend that the Applicant undertake full time and ongoing employment as a Labourer, Prison and Security Officer and a Clerical and Administrative Worker. He answered in the negative to the first two lines of employment, and in relation to the third, thought the Applicant was capable of performing clerical and administrative work.
He was then asked:
“If Mr Redenbach was diagnosed as suffering from left knee post traumatic osteoarthritis as at the date of discharge (18.8.87) [sic], and given his “symptomatic pes planus”, what were the limitations placed upon him in terms of day to day activities as at date of discharge (see in your first report you state “engaged in most day to day activities” at page 6)?
I believe this gentleman would have been capable of carrying out most day to day activities, avoiding heavy impact activities such as running, prolonged standing and walking or any activity that might cause undue load on his knee or feet.” [31]
[31] Exhibit 4(e), Supplementary Report of Dr Saxby, dated 17 August 2017, pages 1-3.
Cross-examination of Dr Saxby
Dr Saxby was cross-examined about the content of his two abovementioned reports. The following exchange ensued between him and Counsel for the Respondent:
“MR SCHULTE: The first question I had was, when we look at your report dated 2 July 2017 it’s fair to say, isn’t it, that you haven’t gone through and actually specifically identified the facts and assumptions that you’ve relied on to form your opinion?
DR SAXBY: Facts and assumptions? I’m not sure what you’re asking me.
MR SCHULTE: So, you haven’t extracted from the material that you’ve been briefed with the facts and assumptions…?
DR SAXBY: Well,…I’m mainly using the reports of the doctors who have seen him around that time. I’ve relied on their reports and their findings.
MR SCHULTE: I see. So, insofar as, for example, the military medical history is concerned, there doesn’t appear to be any reference to that in your opinion?
DR SAXBY: Only the history given by the doctors that treated him…
…
MR SCHULTE: … Now, it is fair to say that you don’t identify in your report what you understand, or understood, Mr Redenbach could, or could not, do as at 19 September 1987?
DR SAXBY: No, I haven’t commented on what he could or couldn’t do at the time of – this shows at the date of discharge, is it?
MR SCHULTE: Yes?
DR SAXBY: No
…
MR SCHULTE: …So, in this particular situation, in the absence of reported pain, for example, by Mr Redenbach, it’s difficult, isn’t it, to speculate about whether he was feeling pain or not?
DR SAXBY: Pain is the reported symptom. You can’t speculate about anything. The patient reports what they feel. There’s no way I can know or measure that. That’s just what they say.
…
MR SCHULTE: …Now, I just want to go back to this issue of functionality. Just so I make sure that I understand, so if there hasn’t been any reported pain, and there hasn’t been any reported lack of functionality, you’re not able to express an opinion, are you, that Mr Redenbach might have had pain or might have had a lack of functionality with his knee?
DR SAXBY: I can’t comment about how he was at the time. I didn’t see him or take a history.
MR SCHULTE: Thank you. So, it’s not the case, is it,that you’re seeking to express a view about what he could, or couldn’t, do back on 19 September 1987?
DR SAXBY: No, I’m based on the fact that he’s had a significant injury...
…
MR SCHULTE: Page 6 of your first report, say fair square in the middle of the page, there’s a question about whether at the date of discharge 19/09/87 it could have been expected that Mr Redenbach’s injuries of pes planus and post-traumatic arthritis would have caused him to report the same or similar complaints. I mean in the absence of there being any particular reports, I mean you can’t really answer that question, can you?
DR SAXBY: Well, I’m asked to speculate about whether he will have pain from his injury.
MR SCHULTE: You’d agree with me that it is speculation?
DR SAXBY: Well, it is to some extent but he’s had damage to a joint…When it will cause trouble depends on how hard you use it, how much you use it and there are some variabilities but he will have trouble with his knee with time. His feet are speculative because he’s always had flat feet. It became painful when he did a lot. Maybe that will settle down, I don’t know. That is speculation.
…
MR SCHULTE: But it’s fair to say, isn’t it, that it’s a fairly rare thing for you to be asked to try and express a view about what the state of their injury was 30 years ago?
DR SAXBY: Well, we can be asked to look back into past injuries and say they are responsible for their present condition. That’s more what we do for workers’ compensation and that but, yes, maybe it’s unusual in this circumstance but that’s what we’re used to doing.
…”[32]
[my underlining]
[32] Transcript, Day 2, page 72, lines 4-16, lines 24-29 and lines 35-39, page 73, lines 7–16, lines 27–44, page 74, lines 7– 2.
Dr Burke – Occupational Physician
Dr Burke has provided two reports in relation to the Applicant, dated 18 August 2017 and 30 August 2017. Dr Burke’s first report dated 18 August 2017 comprises a series of questions and answers. Relevantly, Dr Burke noted the following in response to each question:
“…
4. …Or, put another way, how do the injuries suffered by Mr Redenbach during his service (being Pes planus and Left Knee Posttraumatic Osteoarthrosis), and present at the date of discharge, being 19.09.1987, affect your answers to question 2(a)(i),(ii) and (iii)?
I believe it is probable that his pes planus and left knee posttraumatic osteoarthrosis would have diminished his capacity to undertake certain positions. These would be those that involved extreme physical demands, that is, heavy or repeated lifting and in particular exposure to steps, stairs, inclines or extended walking and standing.
Hence certain labouring positions would have been restricted, specifically those that did involve significant amounts of the activities described above. In my opinion, he could have worked as a prison and security officer. In my opinion he could have worked as a clerical and administrative worker. I believe he would have been able to work as a kitchen hand. Hence in summary, the principle impact of these injuries would have related to the heavier and more physically demanding labouring type work.
…”[33]
[my underlining; emphasis in original]
[33] Exhibit 4(f), Report of Dr Burke, Occupational Physician, dated 18 August 2017, page 8.
Dr Burke was referred to the abovementioned table in the reviewable decision which adopted “Tasks/duties required” for certain “Job Titles” based on the Accident Compensation Corporation (ACC) Work Type Detail Sheets. The following question/answer sequence appears in Dr Burke’s report:
“5…Without considering the injuries suffered by Mr Redenbach during his service (being Pes planus and left knee posttraumatic osteoarthrosis) and instead based solely on Mr Redenbach’s vocational, trade and professional skills, qualifications and experience as at 19.09.1987 (as determined by you at question 1), please state whether:
(i)Mr Redenbach had the capacity as at the date of his discharge, being 19.09.1987, to undertake the “Tasks/duties required” as a “Labourer” type worker;
I believe that there would have been a restriction with respect to heavier labouring positions. Hence I believe that there would have been a moderate degree of incapacity in relation to certain labouring tasks.
(ii)Mr Redenbach had the capacity as at the date of his discharge, being 19.09.1987, to undertake the “Tasks/duties required” as a “Prison and Security Officer” type worker;
I believe that he would have been able to work as a prison and security officer.
(iii)Mr Redenbach had the capacity as at the date of his discharge, being 19.09.1987, to undertake the “Tasks/duties required” as a “Clerical and Administrative Worker” type worker;
I believe that he would have been able to work as a clerical and administrative worker.
…”[34]
[my underlining; emphasis in original]
[34] Ibid, page 9.
Dr Burke was asked about how the injuries suffered by the Applicant during his service (pes planus and left knee post-traumatic osteoarthrosis) and present at the date of discharge affected, if at all, his immediately preceding answers in relation to the relevant table appearing in the reviewable decision. Dr Burke responded with:
“7…
The injuries suffered during military service principally impact on 5(i) [i.e. “Labourer” type work]. As I have indicated above, I believe that overall there would be a moderate impact on certain labouring positions.”[35]
[my underlining; emphasis in original]
[35] Ibid, page 10.
Dr Burke was then referred to the respective assessments of (1) the Applicant’s knee injury contained in the report of Dr Andrew McQueen in his report dated 12 August 1988, and (2) the assessment of the Applicant’s bilateral foot injuries as stated by Dr Richard Ward in his report dated 3 May 1989. Dr Burke was asked to assume that the matters reported by Drs McQueen and Ward existed at the date of discharge and was then asked the following two questions:
“8…
(i)Whether the injuries suffered by Mr Redenbach to his left knee and both feet during his service…could reasonably be expected to cause Mr Redenbacb [sic] difficulties in finding work in the following types of jobs as at 19.09.1987, being the date of discharge:
1) “Labourer”;
2) “Prison and Security Officer”;
3) “Clerical and Administrative Worker”
There would have been some difficulties in finding work as a labourer. I do not believe that the conditions would have significantly impacted on his ability to find work as a prison and security officer or a clerical and administrative worker.
(ii)To what extent, if any, might Mr Redenbach reasonably have found difficulty in working (that is, obtaining and retaining a job in the competitive workforce) in the following types of jobs with the injuries suffered by him to his left knee and both feet during his service…:
1) “Labourer”;
2) “Prison and Security Officer”;
3) “Clerical and Administrative Worker”
Again I believe that there would have been some impact on certain labouring jobs, particularly those involving more significant levels of physical demands or significant amounts of ambulatory activity. I do not believe that there would have been any significant impact on his ability to retain a job with respect to his conditions as a prison and security officer or clerical and administrative worker.”[36]
[my underlining; emphasis in original]
[36] Ibid, pages 10-11.
Dr Burke was again taken to the report of Dr Richard Ward (dated 3 May 1989) and, in particular, Dr Ward’s findings that as a result of the injuries to the Applicant’s feet, he was unfit for employment which required:
(a)Protracted running on hard surfaces;
(b)Prolonged physical activity on hard surfaces;
(c)Arduous leg activity;
(d)Working on ladders;
(e)Wearing rigid footwear such as safety boots;
(f)Activities which demand intensive foot usage.
Dr Burke was then asked whether, having regard to the abovementioned categories identified by Dr Ward, the Applicant:
“9…could reasonably undertake employment in the following types of jobs as at the date of discharge, being 19.09.1987 (and assuming that the matters reported by Dr Ward also existed as at the date of discharge):
(i)“Labourer”;
(ii)“Prison and Security Officer”;
(iii)“Clerical and Administrative Worker”
Please see my previous answers. There would have been some impact on certain labouring jobs, particularly those involving significant physical demands. I do not believe there would have been any significant impact on prison and security officer work or clerical and administrative work.”[37]
[my underlining; emphasis in original]
[37] Ibid, page 11.
Finally, Dr Burke was referred to the Applicant’s “Statement” outlining his employment history and asked whether that statement is indicative (if at all):
“10…to someone of your particular expertise about the impact Mr Redenbach’s injuries might have reasonably had on his capacity/ability to work in the following types of jobs after the date of discharge, being 19.09.1987…:
(i)“Labourer”;
(ii)“Prison and Security Officer”;
(iii)“Clerical and Administrative Worker”
I do not believe that his statement changes the opinions I have given above.”[38]
[38] Ibid, page 12.
A second report was sought from Dr Burke. It is dated 30 August 2017. Dr Burke was provided with the reports of Dr Saxby. He was referred to question 7 appearing in Dr Saxby’s supplementary report, which comprised this question:
“7. If Mr Redenbach was diagnosed as suffering from left knee posttraumatic osteoarthritis as at the date of discharge, and given his symptomatic pes planus, would you recommend that at the date of discharge Mr Redenbach undertake full time and ongoing employment as a labourer, prison and security officer, clerical and administrative worker?”[39]
[39] Exhibit 4(g), Supplementary Report of Dr Burke, dated 30 August 2017, page 2, paragraph [3].
Dr Burke noted Dr Saxby’s answer was as follows:
“I would not have recommended this gentleman undergo heavy manual labour…Similarly with respect to prison work and work as a security officer, I do not believe this would have been an ideal type of employment, as he would have been required to stand and walk for long periods of time.”[40]
[40] Ibid.
Dr Burke’s comment was as follows:
“Overall, and considering all of the available and new information, I would tend to agree with the sentiments of Dr Saxby. The only caveat I would add to this is that there is a significant number of security officer positions that are sedentary. I believe that that [sic] he would have been able to work in a sedentary security officer position. Such positions would include working with large organisations as a security advisor, working in a control room environment, or providing “meet and greet” services at various large establishments.”[41]
[my underlining]
[41] Ibid, page 3.
In his supplementary report, Dr Burke made two additional observations:
(1)“…I believe the physical limitations associated with his condition of pes planus and left posttraumatic osteoarthrosis would have caused him to have difficulty maintaining a number of types of employment, including labourer and most types of prison and security officer positions. I do not believe that these conditions would have prevented him from continuing to work on an uninterrupted and continuing full time basis in a clerical type position or a more sedentary security officer/security advisor position, as I have outlined above.”[42]; and
(2)“A simple clerical position is equivalent to an entry level position in the Commonwealth public service. This is a position that can involve a range of activities including taking incoming telephone calls, data entry, filing, making appointments, and simple administration tasks.”[43]
[my underlining]
[42] Ibid.
[43] Ibid, page 4.
Cross-examination of Dr Burke
The following exchange ensued between Counsel for the Respondent and Dr Burke:
“MR SCHULTE: Just looking at your first report…the one dated 18 August 2017…page 5…
DR BURKE: Yes.
MR SCHULTE: It starts with a heading File Review and so you say at the very top there: “With respect to his health conditions his primary one has always been pes planus.” So that’s a view you formed as a consequence of the review of the material?
DR BURKE: Well, it was principally based on the fact that that seemed to be the condition - the major condition which led to him being downgraded, yes. So that – that was the – why I said it in that way, yes.
MR SCHULTE: Thank you. Then we just go down on that particular page, there’s an entry there for 8 September 1986 that you’ve identified, “Injury to left knee when parachuting 12 months ago. Recently four weeks ago that PT, knee felt tender.” So can I just confirm with you that from what you received it’s correct, isn’t it, that there’s no evidence of any complaint to a medical practitioner between 8 September 1986 and seeing Dr McQueen on 12 August…
DR BURKE: Well, that’s my understanding.
MR SCHULTE: ---1988?
DR BURKE: That’s my understanding. You may obviously (indistinct) records the detail that you have.
MR SCHULTE: Well, but as a consequence of your review, that’s what you identified?
DR BURKE: Yes, that’s what I identified, yes.
MR SCHULTE: Thank you. Now, the other point that I just wanted to also take you to was over on page 6. The very last comment that you’ve made there is that – it says: “Dr Ward’s examination did not report any issues with his knees.”?
DR BURKE: Yes.
…
MR SCHULTE: I see. Thank you. Now, just so I understand, your reports, you’re not purporting to say, are you, what you actually understood Mr Redenbach could or could not do as at 19 September 1987?
DR BURKE: Could you repeat that, sorry, I’m going to get a bit confused here.
MR SCHULTE: Sorry, I’m just trying to – so the evidence that you’re giving and the expression of opinion that you’re making, you’re not intending to say to the tribunal, well, my opinion is that Mr Redenbach could and could not do various things as at 19 September 1987?
DR BURKE: If I was making – if I was providing that opinion on that particular date, you know, or if a – if a determination had to be made at that particular time.
MR SCHULTE: But what I’m suggesting to you is that you’re not actually giving an opinion about what Mr Redenbach could or could not do in terms of his capacity on 19 September 1987?
DR BURKE: Well, sorry, you know, I’m a bit – sorry, I may be a bit thick here but that’s what I thought I was doing, I thought I was providing an opinion about what he could and couldn’t do as of 1987, you know, the September 1987.
MR SCHULTE: I see. Now, I’m just going to say some things that may not – this is from a lay perspective, okay?
DR BURKE: Yes.
MR SCHULTE: So you agree with me that a person can have a particular injury but the injury may present as asymptomatic?
DR BURKE: Yes.
MR SCHULTE: So you’d accept, wouldn’t you, that insofar as Mr Redenbach is concerned, that his knee injury may not have actually been causing pain?
DR BURKE: I accept that. You know, certainly the evidence – you know, there was no – I couldn’t uncover much around that particular time to suggest that he was having any significant knee problem, no.
…
MR SCHULTE: …I just want your answer to this particular proposition. So in the absence of any reported pain…
DR BURKE: Yes.
MR SCHULTE: …you can’t really speculate whether he was actually feeling pain or not, can you?
DR BURKE: No, of course I can’t, no.
MR SCHULTE: And it is also fair to say that if you’ve got an asymptomatic injury that it may not, in fact, be causing any particular lack of functionality?
DR BURKE: …based on – everything we’ve got in front of us at the moment, it appeared to not be causing any significant symptoms and it certainly didn’t appear to be causing any significant detriment in his function.
MR SCHULTE: So just coming back to your opinion again. Is it correct that you’re not actually seeking to express a view about what Mr Redenbach could or couldn’t do back on 19 September 1987?
DR BURKE: Well, I am, but, you know, I suppose a lot of the information became available the next year when he had the – or whenever he had the arthroscopy, I haven’t got the date in front of me. So it was done the next year, wasn’t it? So obviously when the arthroscopy was done the level of injury in that knee was established a little more definitively and so I’m saying, okay well, that’s – that’s actually what [sic] in the knee at that time in 1987 so, therefore, you know, those limitations would apply.
MR SCHULTE: Dr Burke, you’d accept, wouldn’t you, that in the absence of any complaint about pain or lack of functionality, that it’s very difficult to determine what Mr Redenbach’s level of capacity is at that particular point in time in September of ’87?
DR BURKE: Yes, I agree. You know, obviously in 1987 all we knew about the knee at that stage was, you know – I think that’s all we knew, but there may be some more information which I’m not aware of, but anyway, is what I put in my report so, yes, and the – and the fact that he wasn’t registering any significant symptoms. Yes. I agree. I have to agree with it, yes.”[44]
[my underlining]
[44] Transcript, Day 2, page 78, lines 34-45, page 79, lines 1-24 and lines 38-46, page 80, lines 1-21 and lines 33-46, and page 81, lines 1-19.
Dr Ward – Sports Medicine Consultant
The final medico-legal opinion about the Applicant’s agreed conditions can be found in the report of Dr Richard Ward, Sports Medicine Consultant, dating from 3 May 1989.[45] An initial (and compelling) observation is that Dr Ward’s report was received into evidence on a completely unchallenged basis in terms of its content. Dr Ward was not called to give evidence and, accordingly, despite contentions made on behalf of the Applicant, it is simply not possible for the Tribunal to now entertain any comments or submissions seeking to qualify Dr Ward’s findings. As observed by Counsel for the Respondent, the report of Dr Ward “…says what it says. To the extent that it identifies or records particular things, they are completely unchallenged.”[46]
[45] Exhibit 3, s37 T Documents, T35.3, pages 202-203.
[46] Transcript, Day 2, page 117, lines 24-26.
The Applicant tells Dr Ward that “…he cannot run and he cannot be involved in leg usage sports but swims for general physical fitness.”[47] As observed by Counsel for the Respondent, any assertion that the Applicant “couldn’t run” is not consistent with his Army medical records. The Applicant was able to run, but did so with pain. Thus, it is necessary to examine Dr Ward’s report with caution to accurately understand what it is that the Applicant is reporting as being something he cannot do.
[47] Exhibit 3, s37 T Documents, T35.3, page 202
Under the heading “Work occupation” in his report, Dr Ward noted that:
“Following his discharge from the army on 19th September 1987, Mr Redenbach worked as an upholsterer for a while and has also worked as a security guard. He is presently unemployed. His unemployment is not due to his physical fitness.”[48]
[48] Ibid.
Dr Ward seems to be saying that it is not the state of the Applicant’s physical fitness that was causative of his unemployment at that time. Dr Ward noted that the Applicant “…was a very fit young man who walked into my surgery in no apparent pain or discomfort and with no apparent limp.”[49]
[49] Ibid.
The comments and findings of Dr Ward sit consistently with the Applicant’s evidence at the hearing, during which he took exception to a suggestion that at this time he was “very fit”. The Applicant countered with evidence that he was “extremely fit”. The exchange between the Applicant and Counsel for the Respondent was as follows:
“MR SCHULTE: It’s fair to say that at that point you were very fit?
THE APPLICANT: I take exception to the word “very”. I put “extremely” because my lifestyle was extreme. I had an extreme approach to diet and exercise. I didn’t drink, I didn’t smoke, I had a very low body fat, high muscle mass, I swam very hard, gymnastic rings - I was fit. That of course doesn’t mean that I didn’t have a problem with my feet or my knee because you can be very fit.
MR SCHULTE: And that you didn’t complain of any pain or discomfort to Dr Ward?
THE APPLICANT: At that point I was taking enough codeine for the whole world to be rosy.
MR SCHULTE: I see. Now just on that, so you’re- just described yourself as “extremely fit” and living an extreme lifestyle, that seems inconsistent with an addiction to codeine. How do you explain that?
THE APPLICANT: I don’t know how other people respond or interact with codeine. I know how I responded to it…that’s how I lived.”[50]
[50] Transcript, Day 1, page 31, lines 45-47, and page 32, lines 1-14.
The state of the Applicant’s physical fitness and capacity at that time was endorsed by Dr Ward, who conducted a general physical examination, which he noted as “unremarkable”. Two further findings made by Dr Ward are also indicative of the Applicant’s overall state of health and capacity at the time of his retirement from the Army. Dr Ward noted:
“Very few restrictive conditions are imposed upon Mr Redenbach’s capacity for employment. He should avoid work which requires prolonged physical activity on hard services, (e.g. service within the armed forces) and work which requires arduous leg activity (e.g. the Police Force. He would also find working on ladders difficult but in general he is fit for most forms of work employment up to and including moderately heavy manual labouring activities.”[51]
[51] Exhibit 3, s37 T Documents, T35.3, page 207, paragraph [8].
Similarly, at paragraph 9 of the summary of his report, Dr Ward noted:
“Mr Redenbach is not totally incapacitated at present but unfortunately he is currently unemployed. With the exception of the narrow restrictions placed upon his employment capacity in question no. 8, I believe he would be fit for most forms of work activity when available. Again he should avoid prolonged physical activity on hard surfaces, the wearing of rigid footwear (i.e. safety boots) and specific activities which demand intensive foot usage (working on ladders etc.)”[52]
[52] Ibid, page 208.
It was contended on behalf of the Respondent that:
“Now we don’t resile from any of those things. It is what it is but it is fair to say that of all the evidence there is, this is the piece of evidence from which the tribunal should gain the most assistance in determining what Mr Redenbach’s incapacity was at the time.
In circumstances where there has been no challenge to it, that in those circumstances it should have much greater weight than would be attributed to any other doctor that has descended into these kinds of issues. And with respect to Dr Saxby and Dr Burke, they’re simply not in the same position as Dr Ward was, purely because Dr Ward was much more proximate in time and conducted a physical examination. There’s no doubt about that.”[53]
[my underlining]
[53] Transcript, Day 2, page 119, lines 5-15.
I consider there to be very significant force and effect behind the abovementioned two submissions about (1) Dr Ward’s report providing the Tribunal with the most assistance in determining the state of the Applicant’s incapacity at the relevant time, and (2) that the evidence of Drs Saxby and Burke does not attract the same level of weight as that of Dr Ward due to the obvious factors of the temporal nature of Dr Ward’s report and, in addition, the reality that Dr Ward conducted a physical examination of the Applicant.
Findings about Section 30(2)(c): the diminished capacity to undertake employment
The Medical Evidence
As identified by Dr Burke, the Applicant, in 1986, made a complaint in respect of his knee. Notably, there was no further complaint by the Applicant in this regard until he presented to Dr McQueen in mid-1988, some two years later. This approximately two year period spans the Applicant’s date of retirement from the Army in September 1987. Following his mentioning of the complaint about his knee in mid-1986, the next occasion on which the Applicant made any mention of a problem with his knee appears in the relevant questionnaire which is in the material.[54] Put at its highest, this mention of his knee in the questionnaire can surely only be a note or reference. It cannot be regarded as a “complaint” about a specific condition.
[54] Exhibit 3, s37 T Documents, T3, page 24.
In terms of evidence of a contemporaneous nature with the date of discharge, Dr McQueen noted that the Applicant’s condition in terms of his knee was satisfactory for the approximately 12 month period before he saw the Applicant in mid-1988. Dr McQueen made it clear that, at the time he examined the Applicant in mid-1988, the Applicant’s knee was performing satisfactorily with no symptoms or complaints. I accept the Respondent’s contention that the only genuinely reliable evidence before the Tribunal about the Applicant’s knee is that (1) he had certainly made complaints in relation to his feet (pes planus condition), but (2) there were no complaints made by him in relation to his knee.
One of the areas of contest at the hearing involved a suggestion that simply because the Applicant had not made a complaint about his knee did not necessarily mean that there was no incapacity arising from the asserted knee condition. I have difficulty in accepting such a contention, because, as noted by Counsel for the Respondent, “The difficulty of course with [such a contention] is that in order for there to be any rigour brought to bear to the exercise of identifying incapacity, there must be something that actually initiates the thing which is the incapacity.”[55]
[55] Transcript, Day 2, page 112, lines 40-43.
In their evidence, both Drs Saxby and Burke were not in any position to provide reliable temporal or contemporaneous evidence about the Applicant’s condition at the date of discharge. They readily agreed with the proposition that in the absence of detectable pain, they cannot make any realistic prediction that, at some future point, the Applicant would experience pain. Thus, putting aside the report of Dr Ward for a moment, neither Dr Saxby or Dr Burke provide any informative or reliable evidence about the Applicant’s condition regarding his knee at the date of discharge. The best evidence from this period is that of Dr McQueen, who reported that the Applicant’s knee was operating satisfactorily for the 12 month period before Dr McQueen saw him in mid-1988.
It is difficult for the Tribunal to allocate any measure of convincing weight (or any weight at all) to the evidence of Dr Saxby in terms of ascertaining a specific level of capacity or incapacity the Applicant may have had at the time of discharge/retirement. Dr Saxby confirmed in cross-examination that he essentially based his findings upon the findings appearing in other doctors’ reports. He did not conduct a physical examination of the Applicant. He confirmed that his reports contain no comment on what the Applicant could or could not do as at 19 September 1987. He also said that “Pain is a reported symptom. You can’t speculate about anything. The patient reports what they feel.”
The consequence of this is that Dr Saxby cannot be said to be expressing any view about what the Applicant could or could not do in 1987. The clear inference to be drawn from Dr Saxby’s evidence is that, in the absence of any kind of reported pain from the Applicant, one cannot simply speculate about whether the Applicant was feeling any pain in September 1987.
Dr Saxby’s evidence is similarly unconvincing and unhelpful in terms of providing any reliable assessment of the level of the Applicant’s functionality in September 1987. He accepted that there was difficulty associated with making any prediction about when a person was symptomatic and in pain, apart from saying that this Applicant would have “inevitably” displayed symptoms and experienced pain given his level of injury. The difficulty with this evidence is that it is entirely predictive and is not positively descriptive of the actual level of the Applicant’s functionality when he left the Army. The following – to my mind, telling – exchange ensued between Dr Saxby and Counsel for the Respondent:
“MR SCHULTE: …Now, I just want to go back to this issue of functionality. Just so I make sure that I understand, so if there hasn’t been any reported pain, and there hasn’t been any reported lack of functionality, you’re not able to express an opinion, are you, that Mr Redenbach might have had pain or might have had a lack of functionality with his knee?
DR SAXBY: I can’t comment about how he was at the time. I didn’t see him or take a history.”
One of the reasons for the relative absence of any complaint by the Applicant about his knee can be found in the evidence of Dr Burke. It is clear from his reports (especially the first report) and oral evidence that he had been briefed with a virtually full suite of medical records. His findings make it clear that flat feet (or, pes planus) has always been the primary condition affecting the Applicant and that it was the specific condition behind the Applicant’s invalidity. Dr Burke made three additional concessions. They comprise: (1) he accepted that a person can have a particular injury but that such injury may present as asymptomatic; (2) in the absence of any reported pain by the Applicant, it is not open to a medical practitioner to speculate about whether a patient was actually feeling pain; and (3) in the absence of any such complaint about pain or lack of functionality, he agreed that it would be very difficult to determine the Applicant’s level of incapacity as at September 1987.
The Applicant’s Employment History
I agree with the contention put on behalf of the Respondent: the Applicant’s employment history is configured more on the basis of what he cannot do as opposed to what he can do. Those misgivings become apparent from even a cursory reading of the relevant documents in the material. For example, at paragraph 19 of the Applicant’s Further Amended SFIC[56], dated 6 September 2017, it is noted that “19. The Applicant was discharged from the Army on 19 September 1987 at the rank of Lance Corporal (Army Service History).” The immediately following entry reads, “20. From February 1988 to May 1988 the Applicant worked as a part-time salesperson for 20 Hours per week (T11).”
[56] Exhibit 4(a).
The evidence of working “20 Hours per week” is at odds with the Applicant’s employment history from “1987 to Present” appearing in the material.[57] Therefore, it is reasonable to assume that the “part time salesperson” role appearing next to the entry for “Feb 1988 – May 1988” involved him working at least 20 hours a week during this period. The further difficulty with the “Employment History” provided by the Applicant is that a number of the entries – particularly in the early phases of the Applicant’s post-discharge life – make no mention of him experiencing any pain from either his feet or his knee or, to the extent they do, are at odds with the Applicant’s evidence at the hearing.
[57] Exhibit 3, s37 T Documents, T11, page 103-104.
First, the reference to the part time salesperson work at Myers in the first half of 1988 can be compared to the second part of his employment history for 1988 and, indeed, the first half of 1989. As mentioned, there is no reference to any adverse effects experienced by the Applicant arising from his feet or knee for the first half of 1988. However, for the second half of 1988 and the first half of 1989 he records “…problems with my left knee…” and “problems with my feet, which were exacerbated by wearing rigid safety boots, made this an unrealistic employment option for me.”
Second, the Applicant’s recording of physical problems in the second half of 1988 and the first half of 1989 in his employment history is inconsistent with his evidence at the hearing when questioned about what he did or did not say to Dr Ward in mid-1989. The following exchange ensued between the Applicant and Counsel for the Respondent in cross-examination:
“MR SCHULTE: And you reported to Dr Ward that you were…unemployed at that particular point in time [i.e. 28 April 1989, the date of the consultation with Dr Ward] but your unemployment was not due to your physical fitness?
THE APPLICANT: That’s correct.
MR SCHULTE: Now it’s fair to say isn’t it, that there was no mention – or you didn’t report to Dr Ward any issue relating to your knee?
THE APPLICANT: That wasn’t the purpose of going to see Dr Ward. My understanding is that the Department of Veterans Affairs had arranged that specifically to look at my feet and lower back. To the best of my recollection at no point did Dr Ward ask me about my knee because he was specifically focussed on my feet and my knee – correction – my feet and my lower back.”[58]
[58] Transcript, Day 1, page 31, lines 33-43.
It is difficult to accept that the Applicant made absolutely no mention of pain or difficulty with his knee during his consultation with Dr Ward. Dr Ward did focus on the Applicant’s “leg usage” in a physical fitness or sporting context and it is extraordinary that the Applicant made no mention of his knee at that stage. Dr Ward noted that the Applicant worked as both “an upholsterer for a while and has also worked as a security guard. He is presently unemployed.” Again, it is extraordinary that Dr Ward noted these things, yet for the respective entries for “June 1988 - December 1988” and “January 1989 – June 1989” the Applicant speaks of “…problems with my left knee which where [sic] injured while parachuting in the Army…” and “because of my on-going issues with my feet and my knee I had to reduce my workload from full time to part time.” I also find it extraordinary that the Applicant would tell Dr Ward about his work as a security guard and as an upholsterer yet tell him nothing about the asserted issues and difficulties he was having with his knee.
The further point to note about the Applicant’s appointment with Dr Ward in April 1989 is that he noted that the Applicant walked into his surgery “…in no apparent pain or discomfort and with no apparent limp”. Further, Dr Ward conducted a “general physical examination” which he noted as being “unremarkable”. Again, it is extraordinary that despite a general physical examination conducted by a medical expert very well-versed in finding problems with joints such as the knee, either (1) found no physical symptomatology, or (2) makes no record of the Applicant telling him anything about pain or problems in his knee.
Third, in his oral evidence, the Applicant introduced the element of an apparent addiction to codeine which he says he used to mask the pain and which is responsible for his apparent failure to disclose anything about knee problems or knee pain to Dr Ward. This is what ensued between Counsel for the Respondent and the Applicant in cross-examination:
“MR SCHULTE: Thank you. And it is fair to say at that particular point in time [i.e. 28 April 1989 – the date of the consultation with Dr Ward] that you were very fit?
THE APPLICANT: I take exception to the word “very”. I put “extremely” because my lifestyle was extreme. I had an extreme approach to diet and exercise. I didn’t drink, I didn’t smoke, I had a very low body fat, high muscle mass, I swam very hard, gymnastics rings – I was fit. That of course doesn’t mean that I didn’t have a problem with my feet or my knee because you can be very fit.
MR SCHULTE: And that you didn’t complain of any pain or discomfort to Dr Ward?
THE APPLICANT: At that point I was taking enough codeine for the whole world to be rosy.”[59]
[59] Ibid, page 31, lines 45-47, and page 32, lines 1-6.
The Applicant’s attempt to reconcile an apparent addiction to codeine as a pain-masking agent with his lifestyle geared towards extreme physical fitness, was vague, dismissive and unconvincing:
“MR SCHULTE: I see. Now just on that, so you – just describe yourself as “extremely fit” and living an extreme lifestyle, that seems inconsistent with an addiction to codeine. How do you explain that?
THE APPLICANT: I don’t know how other people respond or interact with codeine. I know how I responded to it. I was seriously struggling to make the transition from solider to civilian and I – in hindsight – had a single focus to be as fit as I could within the limitations that I had. No way am I saying it’s healthy but I can tell you, that’s how I lived.
MR SCHULTE: Now, one other issue in relation – I will call it “codeine addiction”?
THE APPLICANT: M’mm.
MR SCHULTE: There’s nothing in any of this material, is there, that you can point to where you’ve reported to a medical practitioner that you’ve got a codeine addiction?
THE APPLICANT: To understand the way I used codeine begins with understanding immediately what happened in the culture of a battalion after an injury. My most immediate and significant influence is my section commander. I discussed it with him at length and he made it very clear that the last thing I wanted on my record was any use of painkillers and his introduction to me was – because he knew at that point I was in the process of passing – or going for officer selection to go to Duntroon – he said “Do not let anyone know in the system on paperwork that you use codeine.” I took this advice and followed it.
MR SCHULTE: But it’s also fair to say isn’t it that even after you’d finished with the army that there’s no reports by you to any medical practitioner in respect of your codeine addiction?
THE APPLICANT: I have spoken about my codeine addiction more in this room than I have in the last 30 years to anyone…
MR SCHULTE: So you agree with me that you haven’t reported your codeine addiction to a medical practitioner, is that correct?
THE APPLICANT: It’s correct that I was too ashamed to discuss it with anyone, including a medical practitioner.”[60]
[60] Ibid, page 32, lines 8-39.
I do not accept the Applicant’s evidence about his asserted use of codeine to mask pain from his knee (or anywhere else) in circumstances where:
·there is nothing in the historical medical evidence pointing to him saying anything about such an addiction to any medical practitioner;
·he apparently takes codeine to make the whole world “rosy” and because he was “…seriously struggling to make the transition from soldier to civilian…”;
·the only mention of he makes of the asserted codeine addiction to anyone was to his section commander who told him to keep quiet about it because it might affect his career prospects in the Army;
·one would reasonably expect that he would have reported pain and/or codeine addiction to mask any pain to the medical expert who examined and reported on him at a time of relative proximity to the date of discharge;
·there is nothing in the material demonstrating that a painkilling substance has any impact on functionality of a given joint.
It is also necessary to have regard to the overall configuration of the case propounded by the Applicant. A recurring theme involved a suggestion that, for example, the Applicant became involved in a particular line of work (post-discharge) but was not able to continue in that line of work because of difficulties with his knee and feet. Three things can be said about this. First, such a contention is inconsistent with the fundamental exercise the Tribunal has to perform. It is not for the Tribunal to determine whether or not the Applicant’s injuries prevented him being able to perform any sort of employment function post-discharge. The Tribunal is concerned with performing the exercise of determining what the Applicant could and could not do – and strictly so – as at 19 September 1987 (the date of discharge) by reference to the available evidence that may be, to any extent, informative about the level of incapacity at that specific time.
Second, there seems a dearth of support in any of the comments or findings of Dr McQueen about precisely why or how the Applicant’s asserted symptomatology with his knee caused him to, for example, not be able to work as a full time or part time security guard. In his “Employment History” for the period June 1988 – December 1988, the Applicant refers to problems with his knee arising from his time in the army “…(which DVA accepted liability for) resulted in specialist medical treatment, including surgery performed by Doctor Andrew McQueen in July 1988.” The resulting contention propounded at the hearing was that the Applicant’s asserted difficulties with his knee might have somehow interfered with his capacity to discharge his role as a security guard but, as observed by Counsel for the Respondent, “There’s no actual description of what was involved and what particular aspect of his role [i.e. then, as a security guard] led him to the injury that caused him to go and see Dr McQueen.” Thus, to further quote Counsel for the Respondent, “See, the highest it gets put is: “Problems with my left knee”.”
Third, it is not convincingly borne out in the evidence that the Applicant tried to involve himself in a particular line of employment but was not able to maintain that employment because of asserted difficulties with his knee and feet. In his oral evidence, the Applicant spoke of being in Baghdad, Iraq from July 2005 to October 2005. He describes that role as “Security contractor, Baghdad, Iraq. This role required wearing heavy armoured vests which exacerbated the problems with my feet and knee. Because of this I had to resign after three months.”[61] The difficulty with that evidence is that it was not the only reason the Applicant resigned from this role. The following exchange ensued between the Applicant and Counsel for the Respondent in cross-examination:
[61] Exhibit 3, s36 T Documents, T11, page 104.
“MR SCHULTE: Can I just ask you to go down to the entry at page 104 which is July 2005 through to October 2005?
THE APPLICANT: Yes.
MR SCHULTE: You’re working as a security contractor in Baghdad?
THE APPLICANT: That’s correct.
MR SCHULTE: You say there that you had to wear a heavy armoured vest which exacerbated the problems with your feet and knee. Do you see that there?
THE APPLICANT: Yes I do.
MR SCHULTE: You had to resign after three months?
THE APPLICANT: Yes.
MR SCHULTE: What you’re intending to convey in that statement is that you resigned because of the problems that you had with your feet and your knee, is that correct?
THE APPLICANT: That was a contributing part of why I resigned, yes. It was a – almost like a light infantry role. We spent most of our operational time in vehicles, getting in and getting out. Wearing an armoured vest is like suddenly becoming 20 kilograms heavier.
…
MR SCHULTE: Mr Redenbach, all those things are very admirable and I have not – there’s no criticism being levelled at you in terms of your desire to want to do various things. What I am pointing out to you is that it would appear that when one looks at that paragraph and what you’ve said there, it wasn’t the case that you resigned because of issues you were having with your feet and your knee?
THE APPLICANT: I don’t see how you’ve come to that conclusion.
…
MR SCHULTE: What I want to suggest to you is in relation to what you’ve said in T11 in relation to the entry of July 2005 to October 2005 when you were in Baghdad, that you didn’t resign because of your issues that you had with your feet and knee, you resigned because it was worth more money to you to go back to Australia and work as a corporate presenter?
THE APPLICANT: I have a wife and five children and a mortgage. I had the realities of paying bills. I went there for what I believed were good reasons. My wife agreed with those reasons. I can’t maintain that forever but the issues with my knee and my feet sped that process up and I know from experience that if I expose myself to carrying heavy loads the recovery time is increased and long-term damage is increased so I resigned in part because of my feet and my knee.
MR SCHULTE: But it wasn’t only because of your feet and knee, was it?
THE APPLICANT: There were many factors.”[62]
[my underlining]
[62] Transcript, Day 1, page 43, lines 6-22, and page 44, lines 29-34, and page 45, lines 7-20.
The Applicant was referred to a newspaper article in the material[63] which spoke of his work experiences in Papua New Guinea. In his “Employment History”, the Applicant says he spent two periods in Papua New Guinea comprising:
“June 1992 – July 1992: Security supervisor, Lae, Papua New Guinea. Role involved more walking and driving of a manual vehicle than my feet and knee could handle.
…
Mar 1993 – Mar 1994: Security supervisor, Lae, Papua New Guinea. New role involved less walking and driving of a manual vehicle than previous PNG experience, however, ongoing issues with my feet and knee made this employment physically unsustainable.”[64]
[63] Exhibit 3(ii), Supplementary T Documents, ST1, page 26-262, Courier Mail Article, 13 June 2012, ”On the Frontline of Fear”.
[64] Exhibit 3, s37 T Documents, T11, page 103.
During cross-examination, the Applicant was asked about his two stints in Papua New Guinea. In relation to the second of those (March 1993 to March 1994), the following exchange ensued between him and Counsel for the Respondent:
“MR SCHULTE: Then there’s another entry after that right at the very bottom which appears to be for about a year?
THE APPLICANT: Yes. Yes, that’s correct now I see that.
MR SCHULTE: On that second stint as you’ve called it, that was as of, like a security manager. So managing other people?
THE APPLICANT: Well, Papua New Guinea uses terms differently to the way that we would here but I was responsible for overseeing 300 PNG nationals, yes,
MR SCHULTE: Thank you. Where it says the sort of things that you did in the article, 300 guards and did gold escorts, cash exports [sic – this should be “escorts”], provided security for pubs, petrol stations and private homes, that’s correct?
THE APPLICANT: The company did that, yes.
MR SCHULTE: You were involved in that sort of thing?
THE APPLICANT: I was part of the company. I wouldn’t necessarily go on the gold escorts but sometimes I did.”[65]
[65] Transcript, Day 1, page 36, lines 9 – 22.
The Applicant’s evidence about the apparent effect of his symptomatology on his work stints in Papua New Guinea is, to my mind, questionable. First, while his first stint there lasted for about a month, he nevertheless was capable of sustaining a 12 month stint eight months after he returned from the first one. Second, it is difficult to reconcile the Applicant’s assertion that his 12 month period in Papua New Guinea was, despite “…ongoing issues with my feet and knee made this employment physically unsustainable”, in circumstances where he says his role during that second stint “involved less walking and driving of a manual vehicle than previous PNG experience.” Third, I also have significant misgivings about his evidence that he was able to sustain such a role involving, as it did, activities that could quite conceivably have involved stresses and strains on both his feet and his knee. This work involved managing 300 people, and participating in risky activities such as gold and cash escorts, the provision of security for pubs, petrol stations and private homes.
There are similar difficulties with the evidence of the Applicant in relation to his work stint in South Africa, which can be summarised as follows:
“May 1994 – September 1998: Introduced my unarmed combat program into post-apartheid South Africa (and to a lesser degree the UK and the USA) where I provided training courses for members of various law enforcement agencies…Because of my feet and knee injuries my physical workload was limited to brief technical demonstrations along the lines of “like this, do that”…The physical element of this employment (while important) was a small percentage of my overall workload.”[66]
[66] Exhibit 3, s37 T Documents, T11, page 104.
The Applicant was cross-examined about his work stint in South Africa and the following exchange ensued between him and Counsel for the Respondent:
“MR SCHULTE: So the kind of – the role – so there’s no description offered up in respect of that period. Where [sic] you an unarmed combat instructor?
THE APPLICANT: I taught a very unusual program of my own design. It was specifically designed for law enforcement and special forces operatives to fill the gap between when words fail and deadly force was unacceptable…
MR SCHULTE: My question was, would you describe yourself as an unarmed combat instructor during the period you were working in South Africa from May 1994 through to September 1998?
THE APPLICANT: I don’t want to appear difficult and I’m open to agreeing with you but I’d need to know what your definition of an unarmed combat instructor is if I’m to agree with you.
MR SCHULTE: Just what those words mean. The natural meaning of the words. I’m not trying to suggest anything…
THE APPLICANT: It’s a complex area because I know this subject and it means different things to different people. It can be Bruce Lee, Jackie Chan, flying sidekicks. If that’s what it means, I was not an unarmed combat instructor.
MR SCHULTE: All right?
THE APPLICANT: If it means that I facilitated discussions around when a soldier or a police officer couldn’t use deadly force with a firearm, yes, I was an unarmed combat instructor.”[67]
[67] Transcript, Day 1, page 37, lines 6 – 10 and lines 27 – 41.
During the course of his cross-examination about the work stint in South Africa, the Applicant was referred to the Applicant’s response to certain correspondence forwarded by a previously engaged legal practitioner acting on behalf of the Respondent.[68]
[68] Exhibit 9, Documents Provided to the Experts – Not in T Documents, Tab 8: Applicant’s “Response to Allan Anforth’s correspondence dated 20 June 2016”.
“MR SCHULTE: We go down a bit further, you describe one of the drills that you were involved in?
THE APPLICANT: Yes.
[Note: The Applicant described this particular drill as follows: “To provide an indication of how my combat training worked, here is a typical drill: I would put on a blindfold, lie down on a grassed surface and then have 5 or 6 students collectively attempt to physically drag me a distance of 50 metres. The students were not permitted to strike, but they were free to choke, pull hair, apply pressure point holds, wrist locks etc., and, significantly, they were instructed to do so with maximum effort. My defence was not to use formal/orthodox martial art techniques, but rather to simply resist in body and spirit. This activity was extremely demanding – both physically and psychologically…”][69]
[69] Ibid, page 121.
…
MR SCHULTE: This is a drill you participated. You…?
THE APPLICANT: This is a drill that I designed and demonstrated and then I had my class and my students do over and over and over again as I watched.
MR SCHULTE: This is – this is something – sorry, is this part of the drills that you would have used when you were teaching in South Africa?
THE APPLICANT: It is.
MR SCHULTE: I see. You describe it as an activity that is extremely demanding, both physically and psychologically. Do you agree with that?
THE APPLICANT: I do.
MR SCHULTE: You go over the page and say, well, it only lasted for about 30 seconds. Is that correct?
THE APPLICANT: It lasted 30 seconds but it had nothing to do with my feet and very little to do with my knee. I designed that around my limitations like many of my drills.
…
“MR SCHULTE: Even though you’ve spent more than four years doing this work in South Africa, it appears doesn’t it that it did actually take some toll on your knee?
THE APPLICANT: It only took a toll on my knee in 1999 when I was presenting a course for the Sydney Olympic Committee.”[70]
[70] Transcript, Day 1, pages 38, lines 38 – 46 and page 39, lines 1 – 10 and 38 – 41.
It is difficult to lend credibility to this evidence where on the one hand, the Applicant says he was involved in a predominantly verbal instructive training program giving directions to students to do things “like this, do that” etc. Yet on the other hand, he vividly describes an aspect of this instructional process in terms of a controlled physical attack upon himself by five or six students, involving them physically dragging him a distance of some 50 metres and, while they were not allowed to strike him, they were allowed to “choke, pull hair, apply pressure point holds, wrist locks etc.” using their “maximum effort”. It is extraordinary that none of his previously asserted physical symptoms involving either his feet and/or his knee arose as a result of this activity because he was able to “…simply resist in body and spirit”, even in circumstances where “This activity was extremely demanding – both physically and psychologically.” It is also extraordinary that for the four years and four months he was working in South Africa doing this activity, he only noticed it taking a toll on his knee in 1999, some 12 months after his return from South Africa.
Assessing the percentage of incapacity in the context of s 30
Guidance as to how the Tribunal should determine the percentage of incapacity is to be found in Fury. Citing the Full Federal Court in House, the Tribunal (in Fury) said:
“Once again the decision of the Full Federal Court in House (supra) is relevant to the issue of how the determination of the percentage of incapacity is to be assessed in the context of s 30. The Full Court at [15] referred to the comments of Davies J in Re Thompson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433:
“…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 judgment of the extent to which, expressed in percentage terms, and taking into account only the matters set out in s 34(1)(A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental ailment.”[71]
[71] Fury and Defence Force Retirement and Death Benefits Authority [2005] AATA 382, paragraph [51].
FINDINGS
The assessment of a person’s degree of incapacity some 32 years after his retirement/discharge from the Army is an inevitably difficult exercise. As mentioned, it involves a value judgment to be expressed in percentage terms. My determination of this percentage has been primarily informed by:
(1)the temporal nature of Dr McQueen’s evidence, who, after physically examining the Applicant, found that “He had pain in his knee, was assessed with an X-ray and told he had a ligament injury. For the next 12 to 18 months he had episodic locking of the knee and for the last 12 months [i.e. the 12 months prior to mid-1988] had been satisfactory until six weeks prior to consultation”;
(2)the temporal nature of Dr Ward’s evidence, Dr Ward’s physical examination of the Applicant and the further reality that it was received into evidence on an unchallenged basis;
(3)the unconvincing and unreliable nature of the Applicant’s evidence regarding the asserted impact of his symptomatology on what he could or could not do in relation to his post-discharge employment capacity; and
(4)both the non-temporal nature of the opinions and evidence of Drs Saxby and Burke, neither of whom conducted a physical examination upon the Applicant and who primarily relied upon the findings of other medical practitioners in opining about what the Applicant could and could not do at the date of retirement/discharge in September 1987.
Therefore, having regard to the varying degrees of incapacity appearing in s 30(1) of the DFRDB Act, and bearing in mind that this is not a mathematical calculation, but is, rather, a value judgment, I consider that the Applicant’s overall incapacity as at September 1987 and in the years following for the three types of civil employment referred to above, taken together, was 10 percent. It follows that the Applicant’s classification for the purposes of s 30 of the DFDRB Act was “Class C”.
DECISION
Accordingly, the decision under review to determine the Applicant’s percentage of incapacity as 10 percent and to classify him “Class C” with effect from 20 September 1987 is affirmed.
I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.............................[SGD]...........................................
Associate
Dated: 4 October 2019
Date(s) of hearing: 8 and 9 March 2018 Counsel for the Applicant: Mr S Richardson Solicitors for the Applicant: King & Company Solicitors Counsel for the Respondent: Mr R Schulte Solicitors for the Respondent: Australian Government Solicitor “ANNEXURE A”
| EXHIBIT NO. | EXHIBIT |
| 1 | Applicant’s Statement of Facts Issues and Contentions dated 6 March 2017 |
| 2 | Respondent’s Statement of Facts Issues and Contentions dated 3 April 2017 |
| 3 | T Documents comprising (i) T Documents |
| (ii) Supplementary T Documents | |
| (iii) Further Supplementary T Documents | |
| 4 | Letter dated 6 September 2017 from King & Company Solicitors to the AAT Registry enclosing: (a) Further amended Statement of Facts Issues and Contentions dated 6 September 2017 (b) Statement of the Applicant dated 6 September 2017 (c) Army Record of Service Report as at 30 June 2002 (d) Report of Dr Saxby, Orthopaedic Surgeon 20 July 2017 (e) Supplementary Report - Dr Saxby, Orthopaedic Surgeon 17 August 2017 (f) Report of Dr Burke, Oppuc Physician, 18 August 2017 (g) Supplementary Report - Dr Burke, Oppuc Physician, 30 August 2017 |
| 5 | Further Respondent’s Amended Statement of Facts Issues and Contentions dated 17 October 2017 |
| 6 | Applicant’s Outline of Submissions on any point of law in contention 8 December 2017 |
| 7 | Respondent’s Outline of Submissions in response to applicant’s submissions dated 8 December 2017 |
| 8 | Bundle of Letters to doctors |
| 9 | Documents provided to the experts - not in T Documents |
| 10 | Letter to applicant – Dr McQueen dated 27April 2016 |
| 11 | Supplementary Statement of applicant 6 March 2018 |
| 12 | Applicant’s outline of submissions 9 March 2018 |
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