Rowe and Defence Force Retirement and Death Benefits Authority

[2008] AATA 510

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 510

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600152

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRENTON JOHN ROWE

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Senior Member R W Dunne
Dr E T Eriksen (Member)

Date19 June 2008

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – classification of disability – determination of incapacity in relation to civil employment – effective date of re-classification – decision affirmed.

Defence Force Retirement and Death Benefits Act 1973 (Cth) ss 30(1), 34(1), 34(1A), 34(2), 99(6)

Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424

REASONS FOR DECISION

19 June 2008   Senior Member R W Dunne
  Dr E T Eriksen (Member)           

1.      The applicant in this case is Brenton John Rowe.  He served in the Australian Army (“Army”) between 14 May 1985 and 16 July 2000, when he was discharged as medically unfit for service.  His retiring impairment was described by the Army as “bilateral pes planus valgus causing chronic foot pain”.  Having retired in these circumstances, he was entitled to benefit under Part V of the Defence Force Retirement and Death Benefits Act 1973 (“Act”) in accordance with the rate or amount of invalidity benefit provided for in that Part.

2. On 12 July 2000 the applicant was classified by the Defence Force Retirement and Death Benefits Authority (“Authority”), under s 30 of the Act, as Class B (with an incapacity level of 30 percent), with effect from 17 July 2000. On 24 May 2005, the delegate of the Authority, in accordance with s 34(1A) of the Act, determined (inter alia) that the applicant’s incapacity in relation to civil employment was 5 percent and that his classification under s 30 be varied to Class C, with effect from 24 June 2005. On 8 May 2006, the Authority reconsidered the decision of 24 May 2005 and varied the delegate’s decision, under s 34 of the Act, by determining that his classification, with effect from that date, was Class C (with an incapacity level of 20 percent). On 7 June 2006, the applicant applied to this Tribunal for review of the Authority’s decision, which is a reviewable decision by virtue of s 99(6) of the Act.

3.      At the hearing, Mr Glenn Davis (from the Vietnam Veterans’ Federation) appeared on behalf of the applicant and Mr Andrew Dillon (from the office of the Australian Government Solicitor, Canberra) appeared on behalf of the respondent.  The T documents (Exhibit R1), pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, were tendered before the Tribunal, along with the following:

·statement of the applicant’s father, Mr Douglas Rowe, dated 11 March 2008 (Exhibit A1);

·report of Dr Peter Byrne, General Surgeon, dated 10 January 2007 (Exhibit A2);

·report of Dr Kevin Angel, Consultant Orthopaedic Surgeon, dated 26 September 2007 (Exhibit R2);

·report of Dr David Elder, Consultant Occupational Physician, dated 19 September 1999 (Exhibit R3);

·initial assessment report by Ms Miriam Blakemore, Occupational Therapist, dated 3 July 2000 (Exhibit R4);

·assessment of employment options by Ms Miriam Blakemore, Occupational Therapist, dated 31 August 2000 (Exhibit R5);

·letter to applicant from Northern Territory Correctional Services (“NTCS”) dated 4 February 2002 (Exhibit R6);

·NTCS probationer report for the applicant (undated) signed 11 June 2002 (Exhibit R7);

·NTCS probationer report for the applicant dated 24 May 2002 (Exhibit R8);

·NTCS probationer report for the applicant dated 22 July 2002 (Exhibit R9);

·minute from the applicant to the superintendant, Darwin Correctional Centre, dated 18 October 2003 (Exhibit R10);

·minute from the applicant to the superintendant, Darwin Correctional Centre, dated October 2003 (Exhibit R11);

·statement of service of the applicant dated 20 February 2004 (Exhibit R12);

·letter from Department of Veterans’ Affairs to Army Health Records dated 20 June 2000 (Exhibit R13); and

·letter from Australian Defence Force Health Records – Army dated 18 July 2000 (Exhibit R14).

issues for the tribunal

4.      The issues for the Tribunal’s consideration are:

(a)      what was the applicant’s degree of incapacity for civil employment, in percentage terms, as at 24 June 2005; and

(b)      if the assessment of incapacity as at 24 June 2005 leads to a re-classification, what is that re-classification and from what date should it have effect?

legislation

5. The following provisions of the Act relevantly apply to the issues before the Tribunal:

“30       Classification in respect of incapacity

(1)Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:

Percentage of incapacity                 Class

60% or more  A

30% or more but less than 60%        B

Less than 30%   C

…

34       Reclassification in respect of incapacity

(1)The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.

…

(1A)In determining:

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

(aab)what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a recipient member who has died;

the Authority shall have regard to the following matters only:

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

(b)the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;

(c)the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);

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

(2)Where a recipient member is reclassified under this section, the Authority shall specify the date from which the reclassification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly.”

background and evidence

6.      The applicant was born on 28 June 1963.  While in the Army, he undertook recruit training and was employed as:

·a signalman performing linesman duties between November 1985 and August 1988;

·a military policeman performing general duties between August 1988 and September 1998; and

·a military policeman performing investigator duties between September 1998 and July 2000.

7.      After 15 years of service, he was medically discharged due to pes planus valgus (flat feet).  He started having sore feet in about 1998.  The pain, which he said he had all the time, was more intense when he was on his feet.  It extended from the feet to his lower back and he felt continual throbbing in both feet.  After being discharged from the Army, he had been a prison officer in Darwin.  However, he could not remain there as he could not physically do his job properly.  Eventually, he chose to leave Darwin and returned to Adelaide.  He had tried working as a construction assistant but, because he had to be on his feet most of the time, he could not do the work.  He could not walk long distances and, after a time, would have to sit down.  He could only walk on flat surfaces, but even then was in severe pain. 

8.      In cross-examination by Mr Dillon, the applicant said he first had sore feet in 1986.  When challenged by Mr Dillon that the date was around 1998, he said his memory was “shot” and he could not remember the actual year.  He had intended to accept a posting to East Timor as a military policeman.  He was capable of doing the job, but was unable to undertake the physical training involved, particularly running.  Before his discharge, he was operating as an investigator, but as a soldier in the Army, he was failing. 

9.      Mr Dillon referred the applicant to the following medical reports and other documents in evidence:

(a)      Report of Dr David Elder (Exhibit R3).  The report noted that the applicant was able to fulfil all the requirements of being a military policeman.  However, there were other requirements of the Army, such as fitness assessments, that he was unable to undertake.   

(b)      Initial assessment report of Ms Miriam Blakemore (Exhibit R4).  The report noted the applicant had an injury that precluded him from ongoing employment with the Army, albeit a very minor injury.  The injury would preclude him from little else, as he still had a significant work capacity due to his overall level of strength and fitness.

(c)       Further report of Ms Miriam Blakemore (Exhibit R5).  The report noted that the applicant’s diagnosis of pes planus required him to wear special shoe inserts.  If he wore shoes as prescribed by his podiatrist, there was no reason why he could not perform tasks that required him to be on his feet for prolonged periods.  The applicant said that, in August 2000, when the report was made, he did not have shoe inserts. 

(d)      Probationer report (undated) signed 11 June 2002 (Exhibit R7).  The report noted that the applicant’s performance as a prison officer had been satisfactory.  However, permanent appointment was not confirmed.

(e)      Probationer report dated 24 May 2002 (Exhibit R8).  The report noted that the applicant was a good prison officer and maintained order.  He performed well, completed his duties on time and, with his past services experience, was capable of organising and carrying out tasks.  He also had no problem in making himself understood.  The applicant pointed out that the report referred to him as occupying the position of senior prison officer.  He said that he had never held that position at the Darwin Correctional Centre. 

(f)       Probationer report dated 22 July 2002 (Exhibit R9).  The report noted that the applicant was polite and courteous at all times, did not have any conflicts with other officers and willingly joined in social activities after hours.  No task was too hard or dirty for him.  He always undertook any duties assigned to him by his senior.

(g)      Applicant’s minute dated October 2003 to the superintendant, Darwin Correctional Centre (Exhibit R11).  In the minute, the applicant had requested approval for 12 months leave without pay.  His wife had been offered a promotion in her employment which required re-location to South Australia.  The applicant said he wished to support his wife and had applied for leave, commencing on 18 November 2003.  In the minute, the applicant said:

“It is with great difficulty and regret that I have to make this decision.  I absolutely and thoroughly enjoy my position here with the NTCS and hope to return within 12 months.”

(h)      Applicant’s minute dated 18 October 2003 to the superintendant, Darwin Correctional Centre (Exhibit R10).  In this minute, the applicant again requested approval for leave without pay, commencing on 15 November 2003.  On completion of the leave, he requested that his resignation be accepted, to take effect from 6 February 2004.

10.     In further cross-examination by Mr Dillon the applicant said that, when working at the Darwin Correctional Centre, he would hide the problems with his feet.  His only medicine for pain relief was Panadol and periods of rest.  In Darwin, he suffered from headaches daily and his wife would obtain medicines for him, mainly Panadeine Forte.  When asked by Mr Dillon about his present health, he said that he could not do anything at the moment.

evidence of mr douglas rowe

11.     Mr Douglas Rowe was the applicant’s father and a retired police officer.  Mr Davis referred him to his witness statement (Exhibit A1).  Mr Rowe said that his son had been living with him since 2004 and that this had become a very stressful experience for him.  He was unable to communicate with the applicant, due to his moods, which he said had been brought about by his son’s pain.  This situation occurred regularly.  He said it had not improved, but had deteriorated since the applicant had been discharged from the Army.  He said the applicant would lock himself in his room, had little to do with anyone else and went out on only odd occasions. 

evidence of dr kevin angel

12.     Dr Angel had examined the applicant on 11 October 2004.  He had provided a report on 4 November 2004 (Exhibit R1, T42) and a supplementary report on 26 September 2007 (Exhibit R2).  In examination by Mr Dillon, Dr Angel said that, in his first report, he assessed the applicant as having minimal incapacity for employment as a communication linesman, an investigator and a security officer.  In his supplementary report, he assessed the applicant as having a small incapacity for employment as a prison officer and a moderate incapacity for employment as a construction assistant.  As the applicant had coped with his work as a prison officer in Darwin, in his oral evidence, Dr Angel said that his assessment would be a minimal incapacity for that type of work.  When asked by the Tribunal for a possible diagnosis for the applicant’s condition, Dr Angel said that further investigation was necessary and possible referral to a specialist in foot and ankle.  Pes planus was not normally a significant cause of foot pain, unless there was an underlying cause for the flat feet, such as a tarsal condition or other pathology, which the applicant did not have.  He said he did not believe that staying in his room would have been because he had sore feet.  In his reports, he had made it clear that the applicant had significant psychological problems resulting from the fact that he had to leave the Army.  This was devastating for him.  He had been coping well in the Army, had complained of feet problems, but group marches and a lot of heavy work would do that.  He had been due to go to East Timor and, in Dr Angel’s view, his psychological problems started on the day when he was prevented from going because he had flat feet.  This was despite the fact that the applicant had served some 16 years of hard work in the Army, with his flat feet.

submissions for the applicant

13.      Mr Davis submitted that the applicant only performed light duties in the Army and this was because of his sore feet.  He referred to the report of Dr Angel dated 26 September 2007 where, when asked to specify a precise percentage when providing an overall assessment of the degree to which the applicant’s pes planus (as at 24 June 2005) diminished his capacity to undertake employment as a storeperson, general communications tradesperson, private investigator, prison officer and construction assistant, Dr Angel said in the report (at page 4):

“Considering his overall assessment, in view of the fact you have asked for a ‘precise percentage (as opposed to a range)’, I would put that figure with regard to construction assistant and prison officer at 30 %.”

Having regard to what Dr Angel had said above, Mr Davis put to the Tribunal that the applicant’s percentage of incapacity in relation to employment as a construction assistant and prison officer should be Class B.  Mr Davis contended that, in his oral evidence, Dr Angel did not refute that assessment.

submissions for the respondent

14. With reference to the respondent’s statement of facts and contentions, Mr Dillon submitted that, in determining the applicant’s percentage of incapacity in relation to civil employment for the purposes of s 34 of the Act, the only matters that were relevant were those set out in s 34(1A) and s 34(1B) of the Act. These matters were:

14.1the applicant’s vocational, trade and professional skills, qualifications and experience;

14.2the kinds of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake;

14.3the physical or mental incapacity by reason of which the applicant was retired;

14.4the physical or mental impairment which was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the applicant was retired;

14.5the applicant’s impairments, if any, that were causally connected to the impairment which was the cause of the invalidity or physical or mental incapacity by reason of which the applicant was retired; and

14.6the degree to which the applicant’s prescribed physical or mental impairment identified in paragraph 14.4 diminished his capacity to undertake the kinds of civil employment referred to in paragraph 14.2 .

15.     In relation to the kinds of employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake, it was Mr Dillon’s contention that the kinds of employment were:

15.1storeperson;

15.2general communications tradesperson;

15.3private investigator;

15.4prison officer; and

15.5    construction assistant.

16.     In relation to the physical or mental incapacity by reason of which the applicant was retired, Mr Dillon contended that it was because of his “inability to undertake standing, walking, stair climbing, kneeling, squatting or repetitive bending for prolonged periods”.  He further contended that the applicant’s prescribed impairment, as at 24 June 2005, was “bilateral pes planus valgus causing chronic foot pain”, and that, on the evidence of Dr Angel, the applicant’s percentage of incapacity for the kinds of civil employment described in paragraph 15 above, as at 24 June 2005, was small (20 percent) and was therefore within Class C for the purposes of s 34 of the Act. In respect of the report of Dr Byrne (Exhibit A2), as Dr Byrne was not available to give evidence and his report could not be tested, Mr Dillon submitted that the report should be given very limited weight.

consideration

17. The Tribunal notes that, following the review by the Authority of the delegate’s determination made on 24 May 2005, the following classification of the applicant was made under s 34 of the Act (Exhibit R1, T59):

17.1the kinds of employment which a person with the applicant’s vocational, trade and professional skills, qualifications and experience might reasonably undertake were storeperson, general communications tradesperson, private investigator, prison officer and construction assistant;

17.2“bilateral pes planus valgus causing chronic foot pain” constituted the applicant’s prescribed physical or mental impairments;

17.3the applicant’s degree of incapacity to undertake the kinds of civil employment that had been identified was 20 percent; and

17.4the applicant’s percentage of incapacity in relation to civil employment was 20 percent (Class C), with effect from 24 June 2005.

The Tribunal is satisfied, on the evidence, that the classification of the applicant made by the Authority and referred to in paragraphs 17.1 and 17.2 above was correct.  The Tribunal is also satisfied that the applicant did not suffer from any other impairments that were causally connected with his retirement impairments.  Although there was evidence given by the applicant and appearing in medical reports that he suffered from post-traumatic stress disorder, there was no evidence to suggest that this condition impaired his employment at the relevant time.  The only issue that remains is the classification reviewed by the Authority and referred to in paragraphs 17.3 and 17.4 above.

18.     In Re McGovern and Defence Force Retirement and Death Benefits Authority (1988) 16 ALD 791 at 792, in considering s 34 of the Act, the Tribunal said that the only matters it could take into account in determining the percentage of incapacity were those referred to in that provision and that, accordingly, the Tribunal could not take into account the ageing process, a depressed labour market, a state of unemployment, the shortage of employment for those who might engage in a particular occupation, circumstances foreseeable only in the long-term unless made appropriate, or prevention of continuance of non-civil employment.

19.     In Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433, Davies J said:

“ … 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(1A), a person has suffered incapacity to engage in civil employment brought about by a prescribed physical or mental impairment. …”

20.     As was put by Mr Dillon, the question is, what is the degree of incapacity of the applicant for the identified kind of employment (namely, as a prison officer) caused by his pes planus valgus on 24 June 2005?  Mr Davis submitted that the applicant had sore feet while he was in the Army.  However, the applicant acknowledged that he had not had any time off in the two years before he was discharged because of problems with his feet.  In correspondence from the Australian Defence Force Health Records to the Department of Veterans’ Affairs, it was confirmed that the applicant had not been recorded as being unfit for duty as a result of bilateral pes planus valgus (Exhibits R13 and R14).  There was also no evidence that, whilst employed as a prison officer with the NTCS, he was unable to perform his duties because of sore feet.  The applicant’s probationer reports indicate that he was an efficient prison officer who could do any of the jobs that were required of him.  He performed well, completed his duties on time, had no problem in making himself understood and willingly joined in social activities, after hours.

21.     In making his submissions, Mr Davis referred to Dr Angel’s report dated 26 September 2007 in which he gave an overall assessment of the degree of incapacity to which the applicant’s bilateral pes planus valgus diminished his capacity to undertake employment as a construction assistant and a prison officer at 30 percent.  However, in his oral evidence, Dr Angel made it clear that he assessed the applicant’s degree of incapacity for prison officer work as minimal, rather than small.  Mr Davis did not refer to the report of Dr Byrne (Exhibit A2), perhaps because Mr Dillon had indicated during the hearing that he would he would challenge the report.  Mr Davis said that Dr Byrne was in Queensland, had retired and he could not be located.  In his report, Dr Byrne assessed the applicant as having an incapacity for civil employment of over 30 percent and less than 60 percent, and at the lower range of these figures.  However, his report does not assess the applicant’s incapacity for each employment type, nor does it address in particular the issue of him working as a prison officer in Darwin for 3 years without there being any suggestion of problems with his feet.  Overall, the Tribunal is of the view that Dr Byrne’s report should be given little weight and that the reports of Dr Angel should be preferred.    

22. Having reviewed all the evidence, the Tribunal is satisfied that the applicant was correctly classified (or reclassified) as Class C, pursuant to s 34(1) of the Act, which carries with it a percentage of incapacity of less than 30 percent. As Dr Angel’s incapacity assessment of the applicant for employment as a prison officer was minimal, the Tribunal is of the view that the Authority’s determination of the applicant’s percentage of incapacity of 20 percent was correct and should not be disturbed. Having said this, it was clear from the evidence given by the applicant that he was suffering from severe psychological problems that had been caused as a result of his discharge from the Army as medically unfit for service. Dr Angel clearly recognised this in his reports and in his oral evidence. When the Tribunal suggested to him that the applicant had been in a very anxious state when he gave his evidence at the hearing and it had been of great concern to him that he had not been able to complete his 20 years’ service in the Army, Dr Angel said he agreed and would not blame him for having this attitude.

decision

23.     For the reasons given above, the Tribunal affirms the decision under review.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne and Dr E T Eriksen (Member)

Signed:         .....................................................................................
  Associate

Dates of Hearing  12/13 March 2008
Date of Decision  19 June 2008

Advocate for the Applicant       Mr Glenn Davis

Vietnam Veterans' Federation
Counsel for the Respondent     Mr Andrew Dillon
Solicitor for the Respondent     AGS