Retirement Benefits Fund Board v Boughton
[2005] TASSC 80
•26 August 2005
[2005] TASSC 80
CITATION: Retirement Benefits Fund Board v Boughton [2005] TASSC 80
PARTIES: RETIREMENT BENEFITS FUND BOARD
v
BOUGHTON, Reginald Phillip
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M40/2005
DELIVERED ON: 26 August 2005
DELIVERED AT: Hobart
HEARING DATE: 9 August 2005
JUDGMENT OF: Hill AJ
CATCHWORDS:
Superannuation – Public service funds – Other matters – State matters – Other States or Territories – Tasmania – Invalidity - Whether "unfit to work in a position for which the employee is reasonably qualified by education, training or experience and for which he or she may be required to accept".
Retirement Benefits Fund Regulations 1994 (Tas), reg3.
Retirement Benefits Fund Board v Hingston (1997) 7 Tas R 134, followed.
Riley v National Mutual Life Association of Australasia Limited (1986) 4 ANZIC 60-684; Allessi v National Mutual Life Association of Australasia Limited (1982) 2 ANZIC 60-481; Wylie v The Board of Trustees, State Public Sector Superannuation Scheme, [1997] QSC 46; Re Jorgenson and Comcare AAT A94/195, referred to.
Aust Dig Superannuation [40]
REPRESENTATION:
Counsel:
Applicant: A B Walker
Respondent: A G Burrows-Cheng
Solicitors:
Applicant: Dobson Mitchell & Allport
Respondent: Murdoch Clarke
Judgment Number: [2005] TASSC 80
Number of paragraphs: 64
Serial No 80/2005
File No M40/2005
RETIREMENT BENEFITS FUND BOARD
v REGINALD PHILLIP BOUGHTON
REASONS FOR JUDGMENT HILL AJ
26 August 2005
The Retirement Benefits Fund Board ("the Board") seeks a declaration pursuant to the Retirement Benefits Fund Regulations 1994 ("the Regulations"), reg106, in the following terms:
"1 A declaration that the determination of the applicant made on 15 December 2004, that the respondent did not meet the necessary criteria to be eligible to receive an ill-health benefit payable under the Retirement Benefit Funds Regulations 1994, is valid.'
Although they have been repealed, it is agreed that the 1994 Regulations apply to the respondent's situation. Regulation 106 provides as follows:
"(1) If the Board, after a hearing as provided in regulation 105, has determined a question or an application adversely to an employee or pensioner, the employee or pensioner may require the Board to apply to the Supreme Court for a declaration in respect of that determination.
(2) Subject to subregulation (3), the Supreme Court may, on an application under subregulation (1), make a declaration, having regard to facts existing and events that had occurred at the time when the declaration is made, as to the validity or otherwise of the determination in respect of which the application is made.
(3) …
(4) For the purpose of reviewing a determination by the Board, the Supreme Court has all the powers and discretions that are conferred on the Board by law or under the Act.
(5) The Supreme Court may make a declaration ¾
(a)affirming the Board's decision; or
(b)remitting the matter to which the Board's determination relates to the Board for reconsideration in accordance with the directions of the Court; or
(c)varying the Board's determination; or
(d)setting aside the Board's determination and substituting a decision for the determination set aside."
The Retirement Benefits Act 1993 ("the Act") provides, in s5 that the objects of the Act are to provide a superannuation scheme for persons employed by the State ("the scheme").
The Act, s7, provides the Board may take proceedings in its corporate name.
The Board is to administer and manage the Scheme and is to act as the sole trustee of the fund and have powers as prescribed by the Regulations (s10).
Section 29 provides that a person aggrieved by a decision of the Board, may require the Board to apply to the Supreme Court for a declaration as to the validity of the Boards decision.
Regulation 56 provides that if an eligible employee, who is covered for death and disability benefits, dies or is retired on the grounds of invalidity, the eligible employee, or if the eligible employee has died, his or her personal representative is entitled to a benefit with respect to actual and prospective service. If any question arises as to whether an eligible employee is unable by reason of invalidity to perform his or her duties, the Board is to determine the matter under reg96 (reg56).
Regulation 96 provides that if a question arises as to whether an employee is suffering from such bodily infirmity, physical incapacity or mental incapacity as to be retired on the grounds of invalidity, the question is to be determined by the Board, having regard to any medical or other evidence provided by, or on behalf of, the employee or person on the basis of a report of a legally-qualified medical practitioner appointed or employed by the Board.
The definition of invalidity is found in reg3 and is as follows:
"'invalidity' means total and permanent incapacity, that is such bodily infirmity, physical incapacity or mental incapacity of such a kind that the Board is satisfied that the employee is, and until age 60 years will continue to be, unfit to work in a position for which the employee is reasonably qualified by education, training or experience and for which he or she may be required to accept."
The Board made a decision and notified the respondent in writing of its decision and he elected to follow the course set out in reg105, which provides as follows:
"(1) In respect of any application or question arising under regulation 85 or 88F or Part 9, the Board must ¾
(a)make a preliminary decision on the matter; and
(b)notify the applicant in writing of the preliminary decision; and
(c)advise the applicant that, if he or she does not take any action under this regulation, the preliminary decision will become final.
(2) An applicant may, within 14 days after receipt of a notification under subregulation (1), elect by notice in writing to the Board ¾
(a)to appear and be heard before the Board; and
(b)to submit any additional medical report or other evidence."
The Board determined that the respondent "did not meet the criteria to receive an ill health benefit payable under the Regulations", and, pursuant to reg106, the respondent required the Board to refer that determination to this Court.
I am to rehear the matter and consider afresh the materials that were placed before Board. The definition of "invalidity" was considered by Underwood J (as he then was) in Retirement Benefits Fund Board v Hingston (1997) 7 Tas R 134, where he said at 139 – 140:
"There is no warrant for reading any extra words into the definition of invalidity. The expressions:
· 'for which the employee is reasonably qualified by education, training or experience'; and
· 'for which he or she may be required to accept'
together govern the nature of the employment for which the employee must be unfit before being entitled to receive an invalidity benefit. By reason of education, training and/or experience, employees may be fit to work in positions that it would be unreasonable to require them to accept. By way of example, a head of agency or senior public servant who becomes unfit by reason of mental incapacity to continue in his or her position, may well be qualified by reason of training, education and experience and fit to work, for example, as a filing clerk or a gardener, but such a position is not one that he or she could reasonably be required to accept."
and further, at 142 – 143:
"An examination of the whole of the scheme as evidenced by the Regulations, and the words in reg3(1) defining 'invalidity' leads to the conclusion that in that definition, the expression 'for which he or she may be required to accept' does not mean required in accordance with the terms of the employment of the employee. Those words are part of an objective description of the kind of employment which, having regard to the employee's education, training or experience and any other relevant matter, it would be reasonable to require him or her to accept."
I set out below a number of the matters that are agreed between the parties:
"1 The respondent's date of birth is the 27th of February 1954. He is therefore currently 51 years of age.
2 In 1972 the respondent completed his secondary schooling.
3 In 1973 the respondent worked as a clerk at both the Government Printing Office and the Directorate of Industrial Development.
4 The work the respondent performed when working as a clerk with the Government Printing Office was the work of junior pay clerk. The duties performed included checking the workers [sic] hours and rates of pay, accounting of wage money, and attending to errands as required.
5 The work the respondent performed for the Directorate of Industrial Development included the collection of the newspaper in the morning, the writing of invoices, sending promotional material to interested parties, and the walking to the post office to send the mail.
6 In 1974 the respondent obtained a position as a clerk with the Public Service. After a few months the respondent applied for a position as a Trainee Draughtsman and was successful in obtaining that position.
7 The respondent worked as a Trainee for a three year period. He completed his training as a Design Draughtsman. All his work was that of a junior Draughtsman which is a lower level position than a Design Draughtsman.
8 The area the respondent specialised in whilst a trainee involved reinforced concrete structures such as bridges."
In 1976, the respondent obtained a certificate in civil engineering and in 1977 commenced a studentship with the Education Department. He obtained a Diploma of Teaching (TCAE) in 1979 and since then, until 12 August 2003, worked as a manual arts teacher in high schools in Northern Tasmania. It is further agreed:
"16The respondent suffers from hearing loss in his right ear, mostly noise induced. The respondent suffers from hearing loss in his left ear, partly noise induced.
17The respondent suffers from a chronic depressive disorder accompanied by symptoms of anxiety and occasional panic that is well controlled if the respondent takes regular medication.
18The type of hearing loss the respondent suffers is sensori‑neural hearing loss.
19The respondent's monaural hearing loss in his right ear is 14%, and in his left ear is 35%. The respondent's binaural hearing loss is 19.6%."
The respondent still has difficulties hearing consonants in many words and has, in recent years, suffered from ringing in his right ear. He takes Zoloft for his depression. It is agreed:
"28The symptoms the respondent suffers associated with his depression include poor sleep, anxiety, gastro‑oesophageal reflux, difficulty in concentrating, sensitivity to stress and conflict.
29The Commonwealth Rehabilitation Service conducted a vocational assessment of the respondent on the 29th of June 2004 and the 5th of July 2004.
30The outcome of the assessment conducted by the Commonwealth Rehabilitation Service was that the following occupations may be considered further:
• Driving Instructor
• Private Tutor
• Recruitment Officer
• Trade Union Official"
The duties of a teacher are agreed as follows:
"31The duties of a teacher include a range of teaching and teaching related duties involving:
• Assessment of students and their needs (including pastoral care)
• Preparation and implementation of appropriate learning programs
• Application of suitable student behaviour management strategies
• Classroom teaching
• Use of flexible teaching strategies and processes
• Classroom management and the use of learning resources
• Involvement in curriculum and administrative committees and, where appropriate other decision making bodies
• Assessment of students' work and periodic reporting to parents or guardians
• Out of classroom student supervision
• Liaison with Departmental and other professional staff
• Development of flexible teaching strategies
• Participation in whole of school management issues
• Personal professional development
• Participation in and contribution to general school activities."
The medical evidence to support permanent invalidity
Dr Stuart Guest, the respondent's general practitioner, stated in a report of 30 September 2003 under a heading "ability to work" that the respondent is "not able to work". The following questions and answers appear in that document:
"ability to work
Current employment status, taking account of occupational history, education, training and experience.
Not able to work.
Is the applicant able to perform the duties of his or her current occupation in:
a)a full-time capacity?
No.
b)a part-time capacity?
No.
Is the applicant able to perform the duties of any other occupation for which he or she is suited by education, training or experience?
No."
Dr Guest was also of the opinion the respondent was required to cease gainful employment in a full-time capacity and was asked:
"Is the ill-health such that the applicant will never again engage in gainful employment for which he or she is currently trained, educated or experienced?"
and the answer was "Yes".
He was also of the opinion that it was not practical to redeploy the respondent in alternative positions with his employment agency. Dr Guest described the respondent's condition as "hearing loss, depression, anxiety and panic attacks."
Dr Danesh Irani, in a report dated 16 September 2002, concluded the respondent "suffered from a noise induced hearing loss" and "may require hearing aids as he is having difficulty hearing in staff meetings".
His view was that the loss was permanent and that the respondent would not recover.
In a further report dated 27 October 2003, Dr Irani confirmed that that condition was not amenable to surgery, but that it could be treated with hearing aids.
Dr Sharman
Dr Peter Sharman, in a report of 21 April 2004, reviewed a number of reports in relation to the respondent's condition and assessed him. He said:
"I believe it is quite clear Mr Boughton is not fit to work as a manual arts teacher either on a full time or part time basis."
He was asked the following question:
"Question 2: The problems and symptoms suffered as a result of those conditions and the extent to which they are restrictive:"
his answer, in part, was:
"… It is very difficult for an employee with significant hearing loss to work in a noisy environment where communication is still required, as in a workshop situation teaching students. The use of adequate hearing protection further complicates problems with communication and the stresses and strains of dealing with students particularly those who have tendencies to behavioural problems is very difficult in this sort of environment. Given his history of depression with features of anxiety it is not surprising that he has experienced difficulties in managing. I do not see there is any prospect of him working again as a teacher and this seems to have been accepted by the Education Department when they indicated that he was not fit for alternative employment and they did not support the idea of redeployment."
He was asked:
"Question 5: Are the medical conditions outlined such that he will never again engage in gainful employment for which he is currently trained, educated or experienced, and your further comments in that respect:"
He answered:
"In relation to the prospects of redeployment I believe the prospects are very limited to the point of being non-existent. Mr Boughton has previously worked as a draftsman, but has no skills with current drafting systems that would enable him to work in this capacity at the present time. He has previously worked in clerical jobs at the very start of his career and I do not see any realistic prospect of him resuming that type of work.
Mr Boughton is essentially a professional manual arts teacher and has worked in that occupation all of his working life. It is unrealistic to expect that he could be redeployed into alternative employment at this stage of his working career.
Any career change is likely to involve retraining and he would find it difficult to participate in group educational activities given his hearing loss."
He concluded his report:
"While I would accept that each of the conditions on their own does not render an employee totally incapacitated for work the combination of these factors does cause a high level of disability. While in theory a review of the deployment options could be considered in practice I think it is a waste of time and resources."
He furnished a supplementary report dated 28 September 2004, to which I will refer later.
Jane Kidman, an audiologist, confirmed (26 November 2002) the necessity for the respondent to be fitted with hearing aids.
Medical evidence for the Board
Dr Tim Stewart, in a report dated 12 September 2003, commented that in his opinion the respondent's depression should ease but his hearing loss was permanent. He said the respondent was unfit for his teaching position but that redeployment should be considered and that the respondent was fit to be so redeployed. He considered a vocational assessment ought to be carried out.
Dr Norman Rose, a consultant psychiatrist, in a report dated 23 December 2003, after examining the respondent, concluded that "from a psychiatric perspective he is able to work", but said that the respondent "will have mild depression and anxiety for the remainder of his life but this should not adversely affect his lifestyle or work capacity."
He was asked, "Is the applicant able to perform the duties of any other occupation for which he is suited by education, training or experience?" and he answered "He is able to perform the duties of another occupation."
His opinion was that the respondent was fit to work in a full-time capacity and he said, "He is fit to undertake teaching now".
Mr John Walker, a consultant ear, nose and throat surgeon, in a report dated 2 May 2003, concluded that the respondent "… is fully fit to continue his present occupation with the proviso that hearing protection is worn and hearing aids are not worn at work" (they presented the respondent with difficulties with background noise). Mr Walker noted a binaural loss of hearing at 19.6 per cent and a monaural loss in the left ear of 35 per cent and in the right ear of 14 per cent.
The vocational assessment
CRS Australia carried out an assessment and produced a report "to determine any forms of employment that it would be reasonable to require Mr Boughton to perform on the basis of his education, training and experience."
The medical reports that I have referred to, together with an initial vocational assessment, an original application for an ill-health benefit, and the Department of Education's statement of duties, were considered. In the final report the author, Linda Taylor, a rehabilitation consultant, said "Mr Boughton stated he had no interest in any other jobs listed other than teaching", and further, "Mr Boughton was given a list of occupations, which matched his occupational interest. He again stated that none of the occupations listed were of interest to him." Under the heading "Skills Audit", the following appears:
"Mr Boughton was given a list of skills to ascertain possible transferable skills from previous occupations. Mr Boughton stated that he had none of the skills listed. Following further discussion Mr Boughton conceded that:
· His participation in parent teacher interviews indicated that he has some customer service skills;
· He has basic word processing skills;
· During his teaching career, he has developed some conflict resolution and problem solving skills with young people;
· He has teaching, training and demonstration skills;
· He also has basic reporting skills;
· He has developed the ability to accurately communicate using the phone;
· He was able to maintain records, for example, attendance records and assessment records;
· He has technical skills as a Draftsman, however he stated that these skills were outdated and that he had only worked as a junior on small projects. His work at that time consisted of copying work. He stated that much of the Draftsman's work was now computerised and he considered that he only has basic skills, for example, an ability to use a Draw Program in Microsoft;
· He has basic woodwork and metalwork skills only, using hand tools and small power tools;
· He has basic maintenance/fixing skills, for example, fixing his daughter's shower door."
Ms Taylor concluded that vocational options available to the respondent in the following occupations would require further training, and therefore were not suitable, given his current level of education, training and experience:
(1)Disability Services Instructor;
(2)Guidance Officer;
(3)Library Technician;
(4)Industrial Relations Officer;
(5)Rehabilitation Consultant.
She concluded that the following occupations may be considered further:
(1)Driving Instructor;
(2)Private Tutor;
(3)Recruitment Officer;
(4)Trade Union Official.
Driving instructor
The respondent said he had difficulties hearing indicators in operation and did not consider himself suitable for such an occupation.
Private tutor
It was conceded by Ms Taylor that full-time work was not available. Other evidence from teachers suggested that employment in this area was most unlikely.
Recruitment officer
This would require workplace assessment and equipment modification due to the respondent's hearing problems and may prove difficult.
Trade union official
A union official interviewed was of the opinion that the respondent's hearing difficulty would not enable him to participate in group meetings and the like which were a necessary part of this particular occupation.
Ms Taylor's report concludes with the following recommendation:
"There are limited forms of employment that it would be reasonable to require Mr Boughton to perform, given his disability. He has transferable skills, which may assist him to be competitive for the occupations discussed above, however Mr Boughton has stated that he would not consider work for which he received less remuneration than his current $60,000. He has also stated that he had trained as a teacher, spent the majority of his working life as a teacher and had no interest in pursuing another occupation. Any other occupation of a similar salary and status level as teaching would require lengthy training, for example a university degree. To compete for any position requires a high level of interest and commitment on the part of the candidate. Mr Boughton's thoughts are currently centred on retiring and he has little ambition to pursue a new career direction at this stage in his life."
Dr Sharman considered this report and his view (28 September 2004), having examined these options, was:
"To summarise therefore, although the vocational assessment identified some theoretical possibilities, I can see no realistic prospect of any of the options identified translating into ongoing employment for Mr Boughton in the real world."
The Board contends the respondent could return to being a draftsman; and that his hearing impediment is not an incapacity that makes him unfit to work in any number of positions for which he is reasonably qualified by education, training or experience and for which he may be required to accept.
The Board further contends that a position for which the respondent is reasonably qualified and for which he may reasonably be required to accept, need not be at the same level of remuneration as the position in which he was in fact last employed.
The Board also contends that the respondent is unwilling to work in such positions and "that does not satisfy the test of invalidity".
It must be borne in mind, of course, that I have not seen or heard any of the witnesses to whose evidence I have referred, nor have I seen the respondent give evidence.
The respondent contends that he has "total and permanent incapacity" within the meaning of "invalidity" in the Regulations.
The Board contends that I cannot be so satisfied.
In Riley v National Mutual Life Association of Australasia Limited (1986) 4 ANZIC 60-684, Cosgrove J was considering the meaning of "totally and permanently disabled" and "unlikely ever to engage in work for reward in any occupation or work for which he is reasonably qualified".
His Honour was there considering the position of a fire fighter who had suffered a myocardial infarction and had never returned to work and had claimed superannuation benefits. At 74,063, he said:
"The first question to be addressed is the meaning of the clause and in particular those words which define the test underlying the opinion which is a condition precedent of payment of the benefit. In my opinion the test can be paraphrased as follows: is the incapacity of the plaintiff such as to render it unlikely that he will ever again become a regular member of the work force (ie available for work and able to work) in any suitable occupation?"
In Allessi v National Mutual Life Association of Australasia Limited (1982) 2 ANZIC 60-481, the insurers had insured the plaintiff against death or total and permanent disablement. The relevant provision of the insurance policy defined total and permanent disablement to mean such disability:
"… by bodily injury or disease … [as to wholly prevent the assured] … from engaging in his occupation or any similar occupation or any other occupation for which he [was] fitted by his knowledge, training, status and abilities …".
At 77,725, Wickham J said:
"I do interpret the clause in the policy as applying not merely to any ability to do any kind of work at anything but, in the case of this insured, to relate to him, being prevented from carrying on any occupation which his abilities allow him to carry on, having regard to his knowledge, training and status as a carpenter and, specifically, as a roofing carpenter. I would, however, conclude that it would not be sufficient for the plaintiff to show merely that he was not able to carry on as a roofing carpenter unless he also showed that he was not able to carry on some kind of occupation generally related to that of a carpenter.
If, for example, he was capable of carrying on light work as a carpenter and that was in accordance with his abilities, or abilities which he could with reasonable diligence acquire, then I would conclude that he has not demonstrated that the risk covered by the policy had, in fact, been incurred by him in this particular case."
It was held that the only work the plaintiff might be able to do was of a kind such as a supervisor or watchman or tally clerk. That work would not provide a similar occupation to a carpenter, roofing or otherwise, nor to any other occupation for which he was fitted by his knowledge, training, status and abilities.
In Wylie v The Board of Trustees, State Public Sector Superannuation Scheme, [1997] QSC 46, White J was reviewing a decision of the Queensland Board of Trustees of the State Public Sector Superannuation Scheme. He was considering the question of total and permanent disablement which was relevantly defined as, in the opinion of two medical practitioners, "such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience".
His Honour cited, with approval, the test referred to in Riley and Allessi (supra). In particular, his Honour observed of the test postulated by Cosgrove J in Riley:
"If by 'suitable' his Honour intended to refer to an occupation for which the person was qualified by education training or experience, the test he proposes is appropriate."
The evidence before me is conflicting. Dr Rose's opinion is obviously directed at the applicant's depression, in my view. Dr Stewart considered the respondent is unfit to continue as a teacher, but could be redeployed. The evidence does not assist as to where he could be redeployed. The options in the vocational assessment report do not, I am satisfied, appear realistic and I am satisfied are not "positions" for which the respondent is reasonably qualified by "education, training or experience and for which he may be required to accept". (See Underwood J in Hingston (supra)).
I accept the applicant's submission that employment to which the respondent is reasonably qualified by education, training and experience is a question of fact in each case. Having regard, not only to the physical condition of the respondent, but also to the nature and character of the occupation prior to the accident and the work which was offered after the accident, the work should be substantially equivalent to the employment that it replaced (see Re Jorgenson and Comcare AAT A94/195, 9 August 1995).
The question, it seems to me, is whether the respondent is totally or permanently incapacitated within the meaning of the Regulations. Dr Walker says he is not, in his quite detailed report of 2 May 2003. Dr Sharman, a consultant occupational physician, in another detailed report, says he is, and specifically considered Dr Walker's report, but made no comment on it, although he does refer to Dr Rose's report with which he disagrees. Dr Sharman deals with the cumulative effect of the hearing loss and the depression and says:
"Although each of the conditions on their own may only result in a partial incapacity for work as a teacher the combination of both conditions does make it very difficult for Mr Boughton to manage his previous work as a manual arts teacher."
Dr Walker's report, of course, addresses only the hearing loss aspect of the respondent's condition.
I must say at the end of the day I think the opinion of Dr Sharman as to the combination of the respondent's problems is persuasive. I make the same finding as to the opinions of Dr Guest who was the respondent's general practitioner and in that role had, I infer, seen the respondent on a number of occasions over time. As I have said, I have not seen or heard the witnesses, but I think the effect of both the depressive condition and the hearing problem is more completely dealt with by Drs Sharman and Guest than any of the other medical practitioners involved. I propose to accept the opinion expressed in the reports of those practitioners.
I think realistically on the material before me there are no alternative positions available for the respondent to work within the meaning of the definition under consideration. Specifically I do not think it feasible for him to return to drafting, considering the limited experience he had in that area and the time lapse since that experience.
I am satisfied on the balance of probabilities that he suffers from total and permanent incapacity within the meaning of the definition of invalidity in reg3.
I will hear counsel as to the terms of the appropriate declarations to be made.
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