Seizovic and Commonwealth Superannuation Corporation (General)
[2018] AATA 1084
•1 May 2018
Seizovic and Commonwealth Superannuation Corporation (General) [2018] AATA 1084 (1 May 2018)
Division:GENERAL DIVISION
File Number(s): 2015/6109
Re:Aleksander Seizovic
APPLICANT
AndCommonwealth Superannuation Corporation
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:1 May 2018
Place:Brisbane
I set aside the decision made on 17 October 2006, as affirmed on 19 October 2015, to determine under s 30(1) of the Defence Force Retirement and Death Benefits Act 1973 the applicant’s percentage of incapacity in relation to civil employment as Class C with effect from 2 October 2006. In substitution it is determined that Mr Seizovic’s incapacity in relation to civil employment is between 30% and 60%, and that he be classified as Class B with effect from 2 October 2006, being the day following his discharge from the Navy.
..........................[SGD]..........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
DEFENCE – Defence force retirements and death benefits – service in Royal Australian Navy – medical discharge – invalidity benefit granted – applicant classified as Class C – the kinds of civil employment that might be reasonably undertaken – the degree to which the retirement impairments diminished the applicant’s capacity to undertake the kinds of civil employment – the applicant could reasonably undertake the role of mechanical engineering technician – applicant to be classified as Class B – decision set aside
LEGISLATION
Defence Force Retirement and Death Benefits Act 1973
Navigation Act 2012CASES
Fury and Defence Force Retirement and Death Benefits Authority [2005] AATA 382
Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58
Re The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111 ALR 1, [1992] FCA 599, (1992) 39 FCR 225, (1992) 16 AAR 566, 28 ALD 5
Re Colin Robert Beattie and Defence Force Retirement and Death Benefits Authority [1993] AATA 79
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286SECONDARY MATERIALS
‘Standards for the medical examination of seafarers and coastal pilots’ – Australian Maritime Safety Authority (AMSA)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 May 2018
INTRODUCTION
On 17 October 2006 a determination was made by a delegate of the then Defence Force Retirement and Death Benefits Authority that the applicant’s invalidity classification from service-related health conditions in relation to civil employment was to be small (20%) or Class C, pursuant to s 30 of the Defence Force Retirement and Death Benefits Act 1973) (“the Act”), with effect from 2 October 2006.[1]
[1] Exhibit A, T-Documents, T2 at p. 14.
On 18 February 2014 the applicant requested a review of this determination. On 19 October 2015 the Defence Force Case Assessment Panel affirmed the original decision.
On 16 November 2015 the applicant applied to the Tribunal for review of the decision made by the respondent.
BACKGROUND
The applicant was born on 29 September 1957. He served in the Royal Australian Navy (“the Navy”) for over 24 years, for the period 8 March 1982 to 30 July 2002 and the period 7 April 2003 to 1 October 2006.
On 14 June 2005 the applicant requested a posting to Brisbane on compassionate grounds, which was granted and extended until the end of 2005. On 16 January 2006 he was posted back to HMAS Gascoyne.
Between 28 April 2006 and 8 May 2006 the applicant stayed in Brisbane on leave as his son required emergency surgery. At this time he also sought discharge ‘at own request’, and requested a discharge date of 20 May 2006 as he had an open job offer due to commence in late May 2006.
The applicant was advised that his leave would not be extended beyond 8 May 2006, and he was told to report back to HMAS Gascoyne by that date. On 3 May 2006 the applicant advised that he would be on convalescent leave for a week, and provided documentation from a medical officer indicating that he should remain in Brisbane until at least 14 June 2006.[2]
[2] Exhibit B, Service Medical Records, at p. 29.
On 12 May 2006 the applicant applied for discharge on compassionate grounds as a discharge at own request had been refused. The request for discharge on compassionate grounds was also refused.
On 21 July 2006 the applicant applied for an invalidity benefit and discharge on medical grounds.
On 19 August 2006 it was determined that the applicant’s naval service should be terminated on the basis that he was medically unfit. On 1 October 2006 the applicant was formally discharged, with a separation date of 2 October 2006.[3]
[3] Exhibit A, T-documents, T31.
LEGISLATIVE FRAMEWORK
Section 26 of the Act provides that an ‘invalidity benefit’ is payable to a member of the scheme where they’ve retired on the grounds of invalidity or physical or mental incapacity.
Section 30 of the Act sets out the process for determining the classification for the member’s incapacity:
(1)Where a member of the scheme … is, or is about to become, entitled to invalidity benefit, CSC 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
…
(2)In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a member of the scheme, CSC 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 subsection.
There are no other matters prescribed for the purposes of s 30(2)(d).
In Re Colin Robert Beattie and Defence Force Retirement and Death Benefits Authority [1993] AATA 79, DP Forgie outlined the proper approach to consideration of the same issue that arises in this case, and cited the following extract from Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 at pages 289-290 relating to s 30(1A) of the Act (a provision which mirrors s 30(2)):
"Sub-section (1A) requires consideration, not of employments 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 para (a) might reasonably undertake. The words `kinds', `might' and `reasonably' all indicate that a narrow view is not to be taken. As was made clear by Davies J, when sitting as president of the Tribunal in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433-4, 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 the 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.
It should also be observed that the primary question posed by para (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'. Substituted expressions may tend to lose the peculiar force of the statutory language, which does not at all suggest that the absence of a particular licence, or the need of a particular refresher course, would constitute a barrier. People constantly undertake employments which require some degree of new learning or the obtaining of a new certificate or licence; to do so involves a small increment upon their existing skills, qualifications and experience. The statutory test is not whether the postulated person already has everything that is requisite, but whether a person with his skills, qualifications and experience might reasonably undertake the kind of employment in question. The extent to which in some way he might have to prepare himself bears on whether he might reasonably undertake the employment, which is the ultimate question under the paragraph, but the fact that he must do so does not debar him. It is a question of degree.
One thing which is abundantly clear is that para (b) does not restrict a member to the employments in which he is now engaged in his impaired state. That would be to mock the statutory purpose, which is to find an objective criterion for the assessment of the extent of the impairment. The criterion is a broad one which relates to categories of employment and not to particular occupations. It is concerned with the range of occupations open to the person described, so that the effect of the disability may be measured against the opportunities that might have been open.”
Section 34 of the Act provides for reclassification of the member’s incapacity from time to time. However, this section does not apply where the member is initially classified as Class C, as is the case here.[4] Therefore, the Tribunal can only consider the applicant’s incapacity as at the time of his discharge on 2 October 2006.
[4] Defence Force Retirement and Death Benefits Act 1973, s 34(5).
This does not preclude the Tribunal from having regard to the applicant’s employment following discharge, as per s 30(2)(c) of the Act. In Fury and Defence Force Retirement and Death Benefits Authority [2005] AATA 382 at [15] Member Allen (as he then was) considered that:
“Attempting to determine the degree of incapacity for civil employment at the time of a person’s discharge from the Army more than 25 years after the event will inevitably be difficult. What the applicant has in fact been able to do by way of civil employment since 1977 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 incapacity at the earlier date: see Re X and Defence Force Retirement and Death Benefits Authority (1980) 3 ALN N58. 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 November 1977: see Re The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 111ALR 1[1992] FCA 599, 39 FCR 225, 16AAR 566, 28 ALD 5 at [23].”
ISSUES
The contentious issue in this matter is whether the applicant’s incapacity was correctly assessed as Class C under s 30 of the Act as at the time of his discharge from the Defence Force. Specifically, the parties dispute the following:
a)the kinds of civil employment that might be reasonably undertaken by a person in the applicant’s circumstances; and
b)the degree to which the physical or mental impairment of the applicant had diminished his capacity to undertake the kinds of civil employment that might be reasonably undertaken.
The following issues are not disputed between the parties:
a)the skills, qualifications and experience held by the applicant; and
b)the nature of the applicant’s impairments.
ACCEPTED EVIDENCE
The evidence reflects that the applicant was educated to Year 12, and went on to obtain several Diplomas and Advanced Diplomas including:[5]
a)Advanced Diploma in Mechanical Engineering;
b)Advanced Diploma in Frontline Management;
c)Advanced Diploma in Engineering in Marine Systems;
d)Diploma of Engineering – Industrial Management;
e)Graduate Diploma in Engineering Maintenance Management; and
f)Fitter and Machinist Trade Certificate.
[5] Exhibit A, T-Documents, T2 at p. 32.
The parties do not dispute the content of the reviewable decision which outlines the applicant’s ‘retiring impairments’, or the impairments which rendered him unable to undertake the full range of duties required for his employment and caused him to receive an invalidity discharge. These are listed as:[6]
i.Adjustment disorder with anxiety and depressed mood;
ii.C6/7 disc prolapse with left CT nerve compression;
iii.ACL rupture of the left knee with associated meniscal tears;
iv.Chondral fissure medial formoral condyle;
v.Ruptured anterior cruciate ligament of the right knee with tear of the medial meniscus; and
vi.Medial and lateral compartment osteoarthritis.
[6] Exhibit A, T-Documents, T2 at p. 36.
APPLICANT SUBMISSIONS
Kinds of civil employment
The applicant’s submissions reflect that his work experience is predominantly as a Marine Technical Sailor in the Navy. It was submitted that the kinds of civil employment that could be reasonably undertaken as outlined in the reviewable decision and relied upon by the respondent are incorrect.
The applicant has argued that he has no professional training or experience as a ‘Marine transport professional’ or a ‘Mechanical engineer’. He submitted that he would need to obtain a relevant Bachelor degree (a Bachelor of Applied Science (Nautical Science) and a Bachelor of Applied Science (Marine Engineering) respectively) to be qualified to perform these jobs. He further argued that as all civilian shipping falls under the Navigation Act 2012, these employment types would require the applicant to hold the relevant degree as well as a certificate of medical fitness in accordance with Australian Maritime Safety Authority (“AMSA”) Marine Order 9. I note that since the time of the applicant’s submissions, Order 9 has been repealed and replaced by Order 76.
When providing evidence at the hearing, the applicant confirmed that he knew of the requirements to be a mechanical engineer. He stated that he had determined that many civilian roles similar to his in the Navy required “a lot more training”. He stated that he had previously tried to make the change to becoming a mechanical engineer, but was not able to as it required a Bachelor in Engineering and registration as a professional engineer. However, the applicant also submitted that post-service he took a role working in a mechanical field, and to get this role he used his Advanced Diploma in Mechanical Engineering.
The applicant verbally confirmed that whilst on submarines in the Navy he answered directly to the marine engineering officer, and that every ship has a support engineering officer. He stated that as a technical officer he mainly looked after the damage control departments on board and maintenance types of activities to ensure that the crew was doing what they were supposed to be doing. When giving evidence the applicant stated that he did not perform the duties of a marine engineer in his service. He further explained that the engineer has a degree but is not a tradesman.
At the hearing the applicant was asked about the duties of a marine transport professional. He stated that while he had some knowledge of the role, he did not fully understand the role or have the qualifications or skills to enable him to undertake the role. The type of people in the navy who could fulfil the role of a marine transport professional would have been in the supply department and then in logistics, and he did not do such duties in the Navy. The applicant stated that as a technician he received the “spare parts and relevant stuff” and mainly just repaired and operated machinery for ships or submarines, but did not have skills to enable him to be a marine transport professional. The applicant stated that a marine transport professional would be concerned with the loading and unloading of cargo and would be concerned about the stability of the ship as looking after what he referred to as the “shore side of things”. He stated that this would involve a different type of skill set requirements, and he had never done that type of thing before.
The applicant submitted that he has never performed the duties of a ‘Training Officer’. While he commented in a Members Health Statement dated 8 August 2006 that the nature of his present duties was that he “managed staff development inc. OJT”, he submits that this did not encompass any formal training of subordinates and it was simply an administrative function. The applicant agreed that the only training he had completed was a ‘Technical Training Coordinator’ course twice, in 1990 and again in 2002.
When asked about the occupation of a training officer at the hearing, the applicant remarked, “Training officers in the Defence Force are specific training officers and they educate and they hold degrees in education. I am not that type of person.” The applicant elaborated on this and stated that his role included “job training in regards to the trade requirements and operational requirements… I had no formal recognitions or certification to any type of training officer but I could undertake some of those roles under the Naval Regulations.” The applicant explained that ‘job training’ meant that he got progression training. He stated that a vessel is such a complex asset and that no one could just walk on and be able to undertake the duties. He instructed the crew in such matters as opening and closing valves and performing in emergency situations. He remarked, “You have to sort of bring them in and guide them throughout every process in regards to how things are done. So that’s the training we’re talking about, you know, it’s about, you know, ‘Open up and close this valve’ ‘Know what your system here is’ and … what do you need to open up and shut in different emergency situations”.
The applicant submitted that while taking up a ‘Clerical and admin worker’ role would be less physically demanding on his health, he would at best only be employable on an ad hoc basis due to his lack of formal training. He would also experience stress as a result of a significant devaluation in his employment status and the lack of knowledge he has regarding required software systems.
The applicant further stated that nearly all kinds of employment identified by the respondent would place the applicant in a stressful situation, which is listed as one of the restrictions on his employment in the reviewable decision dated 19 October 2015.
The applicant put forward the following kinds of civil employment that could be reasonably undertaken, and noted that the first three fall under the Navigation Act 2012:
a)Engineer watchkeeper
b)Able seafarer – engine rating
c)Engineer – Class 2
d)Fitter and machinist
Degree of incapacity
In his submissions the applicant argued that the impact of the impairments on his ability to undertake the identified kinds of civil employment was significant. His argument was two-fold.
First, the applicant would not be able to obtain a Certificate of Medical Fitness through AMSA. AMSA has issued ‘Standards for the medical examination of seafarers and coastal pilots’, guidelines for assessing an individual’s fitness to work at sea. The applicant referred to sections 10, 11 and 12, and highlighted in particular the applicant’s long-term use of medications that would affect his ability to work with machinery, and the applicant’s issues with his left knee and neck, which would pose a high risk when working in the maritime industry.
Second, the kinds of employment identified by their nature involve physically strenuous work, and would necessitate the use of many of the restrictions outlined and accepted in the reviewable decision, including: no lifting heavy weights, no working at heights, no repetitive bending, and avoiding stressful situations.[7]
[7] Exhibit A, T-Documents, T2 at p. 38.
In light of these restrictions, the applicant submits that the degree of limitation is substantial. The applicant argued that the respondent understated the effect activities required for the employment types ‘Mechanical engineer’ and ‘Training officer’ would have on the applicant when classifying the degree of impairment as ‘small’. The applicant highlighted the number of restrictions acknowledged by the respondent in this respect.
The applicant pointed to the applicant’s adjustment disorder, anxiety and depression in particular when discussing the extent to which his impairments would impact on the relevant employment kinds identified by the respondent. He submitted that this, combined with the physical demands of the roles, would result in a large degree of incapacity in a mechanical engineer role, and a medium to large degree of incapacity in a training officer role.
The applicant ultimately submitted that if the Tribunal is to accept the kinds of civil employment proposed by the respondent, then a medium incapacity rating of Class B (between 30% and 60%) would be appropriate; and if the Tribunal accepts the applicant’s identified kinds of employment, then a large incapacity rating of Class A (over 60%) would be appropriate.
RESPONDENT SUBMISSIONS
Kinds of civil employment
The respondent submitted that the applicant has a range of experience, including at high levels and in positions requiring high-level technical, management and other skills.
The respondent identified the following kinds of civil employment that might be reasonably undertaken in this case:
(a)Marine Transport Professional – particularly in light of the Applicant’s:
i.Advanced Diploma in Engineering of Marine Systems; and
ii.over 20 years relevant experience as Marine Technical Officer and in performing other roles with the Navy including at the rank of Warrant Officer
(b)Mechanical Engineer – particularly in light of the Applicant’s:
i.Advance Diploma in Mechanical Engineering, Graduate Diploma in Engineering Maintenance Management, Diploma in Engineering Industrial Management and Advanced Diploma in Frontline Management; and
ii.over 20 years relevant experience as Marine Technical Officer and in performing other roles with the Navy including Asset and Maintenance Manager including at the rank of Warrant Officer
(c)Training Officer – particularly in light of the Applicant’s:
i.Advanced Diploma in Frontline Management;
ii.over 5 years in-service experience as a submarine engineers’ trainer, training crews of submarines in engineering; and
iii.over 20 years relevant experience as Marine Technical Officer and in performing other roles with the Navy including Asset and Maintenance Manager including at the rank of Warrant Officer and the associated management and training requirements of these roles
(d)Clerical or Administrative Worker – particularly in light of the Applicant’s:
i.High School qualifications and Advanced Diploma in Frontline Management; and
ii.over 20 years’ experience as Marine Technical Officer and in performing other roles with the Navy including Asset and Maintenance Manager including at the rank of Warrant Officer and performing the associated management and administrative requirements of these roles
The final submissions of the respondent did not add to these kinds of civil employment.
The respondent noted that at this stage of the enquiry the Tribunal cannot have regard to the incapacity of the applicant, as it is not relevant to the determination of the kind of civil employment that a person with the applicant’s skills, qualifications and experience might reasonably undertake.
The respondent referred to the case of Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 when they submitted that a need to increase existing skills or qualifications by a small increment, for example by obtaining a particular licence, would not constitute a barrier to a particular kind of employment. As identified in the reviewable decision, the respondent has determined that employment as a marine transport professional or a mechanical engineer may require registration or licensing.
Degree of incapacity
The respondent submitted that the medical and other evidence (including the applicant’s post-discharge employment history) supports the conclusion that the applicant was incapacitated for the kinds of civil employment listed above to an overall small degree (Class C). They submitted that any employment as a marine transport professional would incapacitate the applicant to a large degree, but in the remaining three employment types only a small incapacity was identified.
The respondent disputed the applicant’s reference to the application of the Navigation Act 2012 and the AMSA guidelines, as this material applies exclusively to seafaring roles and there is no evidence to suggest that the kinds of civil employment identified are exclusively seafaring roles. Further, they submitted that the AMSA guidelines are only intended to be used as a guide by medical practitioners when assessing fitness for sea, and are not to be taken as strict requirements to qualify for seafaring roles. The respondent noted that there has not been an opinion provided by a doctor on the application of the guidelines to the applicant.
CONSIDERATION
Kinds of civil employment
Having regard to s 30(2)(a) of the Act, I have to consider the vocational, trade and professional skills, qualifications and experience of the applicant; and under s 30(2)(b) of the Act I have to consider the kinds of civil employment that the applicant could reasonably undertake.
The applicant has contended that regard should be had to the qualifications which are now prescribed under the Navigation Act 2012, but in my view it would be an error to have regard to legislation that was passed some six years after the applicant was discharged in October 2006.
I accept the evidence of the applicant that the kinds of civil employment that the applicant could reasonably undertake should not include the occupations of a mechanical engineer and a marine transport professional. The applicant gave cogent reasons concerning those occupations and his explanations were quite properly not challenged in cross-examination. To be a mechanical engineer or a marine transport professional the ABS criteria require a relevant tertiary qualification or 5 years applicable experience. While the applicant has a number of engineering diplomas, in giving evidence he explained that he did not qualify for professional registration and that he was unsuccessful in obtaining registration as a mechanical engineer. There is no evidence that the applicant has the applicable experience to qualify him to be a mechanical engineer and a marine transport professional. The respondent quite properly acknowledged that the applicant would have some difficulty in undertaking the heavy physical demands required of a marine transport professional.
I have determined that the applicant could not reasonably undertake the duties of a training officer. In his evidence the applicant explained that he had experience of on the job training of crew. He has completed an instructor course, and has an advanced diploma in frontline management and five years’ experience in training submarine crews. However, the applicant had not undergone any training courses for a period of approximately four years at the time of his discharge. It is also important to appreciate that the applicant at the time of his discharge had medical restrictions such as no standing for more than one hour and to avoid repetitive upper limb activity. Having regard to this I do not think that he could reasonably undertake the duties of a training officer. At the time of his discharge he also had medical restrictions to avoid stress. Having regard to the retiring impairment of an adjustment disorder I have made an assessment that the stress experienced by the applicant at the time of his discharge would be an obstacle to him undertaking the duties of a training officer.
The applicant contended that the significant devaluation in status meant that the applicant could not reasonably undertake the duties of an administrative or clerical officer. I accept this submission. However, in my view such a consideration would also be relevant in regard to whether the kinds of civil employment that the applicant could reasonably undertake would also include a tradesperson. For this reason I do not consider it appropriate or realistic to include the occupations of Fitter and Machinist, Engineer Watchkeeper, Able Seafarer (engine rating) and Engineer (class 2) as being the kinds of civil employment that the applicant could reasonably undertake.
While the applicant has quite properly contented that any administrative or clerical work could be undertaken in an ad hoc manner, there is no cogent evidence that it is feasible or realistic that the applicant might reasonably undertake such employment within the meaning of s 30(2)(b) of the Act.
I am mindful that in Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 it was emphasised in respect of a similar provision that it was an objective provision which required consideration of the kinds of civil employment that a person might reasonably undertake and not whether the person would have gained employment in these areas.
In making an assessment of the kinds of civil employment that the applicant could reasonably undertake the Tribunal is not constrained by the submissions of the parties and has to form an independent assessment. The applicant tendered the Australian and New Zealand Standard Classification of Occupations’ (ANZSCO) classification of Unit Group 3125 of Mechanical Engineering Draftspersons and Technicians. This classification system was introduced just prior to the discharge of the applicant.
While there is no evidence that the applicant could perform the duties of a Mechanical Engineering Draftsperson, he could certainly in my view reasonably undertake the duties of a Mechanical Engineering Technician (312512 of the ANZSCO). The ANZSCO classification recognises that a technician would have an advanced diploma and the applicant certainly has an advanced diploma in mechanical engineering as well as a graduate diploma in engineering maintenance management. The ANZSCO classification system recognises that one of the duties of a Mechanical Engineering Technician includes “organising and supervising inspection and maintenance of machines and plant”.
Prior to his discharge the applicant was offered a position of asset manager for power station assets throughout the Northern Territory. He commenced duties in November 2006, the month after his discharge. In that position he implemented a maintenance management policy and plan to support power station assets. In forming an assessment of the kinds of civil employment that the applicant could reasonably undertake at his discharge, in my view it is legitimate to have regard to this Darwin position that he was offered before his discharge and which he took up shortly after his discharge.
My assessment is that the kind of civil employment that the applicant could reasonably undertake at the date of his discharge would be a Mechanical Engineering Technician.
I do not accept the submissions of the applicant that the kinds of civil employment attributable to the applicant are exclusively seafaring roles, as there is no cogent evidence that he would reasonably undertake such duties.
Retiring impairments
I am now required, under s 30(2)(c) of the Act, to make a finding about the retiring impairments.
There is no issue between the parties about the ‘retiring impairments’ being: Adjustment Disorder with Anxiety and Depressed Mood; C6/7 Disc Prolapse with left CT nerve compression; ACL rupture left knee with associated meniscal tears; Chondral Fissure medial femoral condyle; Ruptured anterior cruciate ligament of the right knee with tear of the medial meniscus; and Medial and lateral compartment osteoarthritis.
Degree of impairment
I am, under s 30(2)(c) of the Act, required to consider the degree to which the retiring impairments diminished the incapacity of the applicant to undertake the kinds of civil employment that a person with the vocational, trade and professional skills, qualifications and experience of the applicant might reasonably undertake.
While the retiring impairments were certainly present when the applicant was discharged, it Is important to have regard to the language of s 30(2)(c) of the Act which refers to the extent 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 kind of civil employment referred to in paragraph (b)”.
The discharging medical officer made comments on the DM 42 form that certain conditions were not of such significance as to have contributed to the discharge of the applicant: these conditions being the conditions of loose right knee, C6/7 disc prolapse with left C7 nerve compression and hearing loss. This assessment was relied upon by the delegate in making the decision dated 17 October 2006. However, in my respectful opinion this assessment does not have regard to the requirements of s 30(2)(c) of the Act, which requires the consideration of impairments which have “diminished the capacity of the member to undertake the kind of civil employment referred to in paragraph (b)” as well as any impairment which “caused the invalidity or physical or mental incapacity because of which he or she was retired”. This is why I have concluded that the original impairment assessment of the applicant was not an impairment assessment which is mandated by the Act. Having regard to observations made by the Full Court in Defence Force Retirement and Death Benefits Authority vHouse (1989) 91 ALR 286 at 291, I am conscious that this Tribunal’s assessment of percentage incapacity has to be calculated in accordance with the Act and not in accordance with a medical assessment.
There was no challenge to the medical evidence before the Tribunal and the applicant did not present any additional evidence concerning the incapacity that was experienced by the applicant when he was discharged in October 2006. The respondent made submissions that the applicant confirmed when giving evidence that there was no additional information beyond that which was already before the Tribunal to demonstrate any other particular difficulties he had at the time of his discharge in October 2006. I have reviewed the considerable documentation concerning the service medical records that are in two volumes and which comprise 792 pages.
One important item of medical evidence that is before the Tribunal is the report dated 20 April 2007 of Dr Matthew Hislop FACSP.[8] The report of Dr Hislop concerns claims in respect of the left knee and right knee conditions of the applicant. At the time of the medical examination of Dr Hislop the applicant was working full-time in a power station. While the medical examination was conducted in the year after the discharge of the applicant it was done within just more than six months after his discharge and there is no suggestion that the report was not representative of the impairments suffered by the applicant at the time of his discharge. Certainly, in October 2015 the Defence Force Case Assessment Panel, quite rightly in my opinion, thought that it was appropriate to have regard to the report. It is certainly legitimate for me to have regard to the comprehensive report of Dr Hislop as the service medical documents document that both knee conditions developed during the service of the applicant.
[8] Exhibit A, T-Documents, T41.
Dr Hislop records that it was at a PT session in February 1985 that the applicant noticed his right knee problems. In October 1985 the right knee was re-injured. On 23 November 2015 an angiogram of the right knee was performed which demonstrated a tear in the posterior horn of the medial meniscus and was also thought to demonstrate a tear of the anterior cruciate ligament. Dr Hislop records:
“Despite this internal derangement, Mr Seizovic’s right knee was managed conservatively. Not surprisingly, he had ongoing problems and felt that his knee was unstable. He suffered from intermittent pain, giving way episodes, and swelling over the subsequent years.
Mr Seizovic presented for medical attention of his right knee in June of 2006. A plain x-ray demonstrated medial compartment degenerative change and a probable small loose body. Significant degenerative disease was noted in the patello-femoral joint. Mr Seizovic has ongoing right knee problems.”
The medical image report of the left knee dated 22 June 2006[9] confirms that before his discharge the applicant had degenerative changes affecting both knee joints, particularly the medial compartment of the right side where there was probably a small loose body. The report also refers to significant disease in both patellofemoral joints.
[9] Exhibit A, T-Documents, T20.
Dr Hislop also reported on the left knee:
“Left Knee – Mr Seizovic believes he first injured his left knee in February 1989 when he twisted and experienced significant pain. He was managed conservatively at this time.
He suffered ongoing problems from this time with intermittent pain and swelling. An x-ray of the left knee performed on 8 November 1994 was reported as being normal. An arthrogram of the right knee performed on 23 November 1994 reportedly showed a tear of the inferior surface of the lateral meniscus and a lesion in the medial meniscus with a ruptured anterior cruciate ligament.
Mr Seizovic was referred for a left knee arthroscopy which was performed in late 1994. He received a medial and lateral meniscectomy at this time. His anterior cruciate ligament was not reconstructed and he received ongoing conservative treatment for his left knee.
As with his right knee, Mr Seizovic continued to suffer from intermittent problems with instability, pain and swelling. An x-ray of his left knee performed on 21 June 2006 showed degenerative change in the medial and patella-femoral compartments. An MRI of the left knee was performed on 26 June 2006. This demonstrated a deficient posterior half of the lateral meniscus with a possible tear in the remaining component of the lateral meniscus. There were complex tears of the body and posterior horn of the medical meniscus. There was chondral fissuring and subchondral oedema in the medial femoral condyle. The anterior cruciate ligament was torn. Mr Seizovic has ongoing left knee problems.”[10]
[10] Exhibit A, T-Documents, T41 at p. 188.
Dr Hislop reported on the then current status of the knee conditions:
“Mr Seizovic states that he suffers from constant background pain in both knees, with the left knee being worse than the right. He has instability episodes every three or four days, with the left feeling more unstable than the right. He has an occasional posterior-located pain in the right knee. He describes anterior lateral and medial pain in the left knee.
The pain in his knees is aggravated by walking, running, lunging, jumping and kneeling. He has significant difficulty with squatting in both knees. He states that his sleep can be affected as a consequence of his bilateral knee problems. He states that he is unable to take part in activities such as Australian Rules football, basketball and running as a consequence of his bilateral knee conditions. In addition, he has problems performing activities around the home, such as yard work and squatting whilst building or cleaning around his house. Mr Seizovic states that he failed a Basic Fitness Assessment in early 2006 as a consequence of his knee problems.”[11]
[11] Id.
Dr Hislop also reported: “Mr Seizovic was observed whilst mobilising for distances on the flat and navigating steps and grades. He demonstrated objective manifest difficulty in navigating steps and grades”.
I am required under s 30(2)(c) of the Act to make an assessment of the degree to which the retiring impairments have caused the incapacity of the applicant to undertake the civil employment of a Mechanical Engineering Technician. I was assisted by the respondent who pointed out that s 30 of the Act has not been considered at an appellate level. However, in Re Colin Robert Beattie and Defence Force Retirement and Death Benefits Authority [1993] AATA 79 Deputy President Forgie, in considering s 30(2)(c) of the Act, found assistance in the remarks of Davies J, a former President of this Tribunal, in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424. Davies J had explained that the determination of a percentage of incapacity is not to be undertaken as if it were a mathematical calculation and that rather it is a value judgment of the extent of incapacity expressed in percentage terms.
I am conscious that at the time of his discharge the applicant was under a number of medical restrictions. The medical restrictions required the applicant to avoid repetitive upper limb activity and load carrying as well as to avoid repetitive bending, squatting and kneeling. The respondent has quite properly acknowledged that the applicant would have some difficulty in undertaking heavy physical demands. The orthopaedic conditions of the applicant certainly caused difficulty. The report of Dr Hislop referred to the “demonstrated objective manifest difficulty in navigating steps and grades”.
In making my assessment as to the degree of impairment I have to apply a value judgement. In this matter I do not have the usual medical reports which are in evidence in cases such as this, which contain a percentage assessment of incapacity concerning each impairment. However, the discharge medical examination dated 13 October 2006 contains an assessment that for the employment of a mechanical engineer the applicant would have a moderate degree of incapacity caused by his orthopaedic and stress conditions. The form defines the term ‘moderate’ as being within the range of 30% - 60%.[12] I rely upon that assessment to make a finding that the degree of incapacity for a mechanical engineering technician would, at least, be within the 30% - 60% range. There is no cogent evidence before me which indicates that the applicant had a degree of incapacity which is greater than 60%.
[12] Exhibit A, T-Documents, T36.
I find under s 30(2)(c) of the Act that at the time of his discharge the percentage of incapacity of the applicant to be between 30% and 60%.
If I were to rule that a kind of civil employment was as a tradesperson and as a fitter and machinist, the percentage of incapacity would be greater in view of the limitation upon physical exertion and the need to avoid stress.
CONCLUSION
The member should be classified as a Class B member.
The parties did not make any submissions about the date of effect of my decision in the event that the applicant was successful. I do not have power under s 34(2) of the Act to determine a date of effect as s 34 of the Act has no application, as was pointed out by the respondent. In the circumstances, my decision should have effect from the day following the discharge of Mr Seizovic from the Navy.[13]
[13] Cf. Fury and Defence Force Retirement and Death Benefits Authority [2005] AATA 382 at [56].
The applicant has received benefits as a Class C member and there may have to be an adjustment made. I also had no submissions on this matter, but it is not part of my function on review to make a decision regarding any adjustment that may have to be made. In most cases where a reviewable decision has been set aside the applicant has sought review of the decision within the reviewable period and there would be no need to make an adjustment. This is a case where the respondent has quite properly granted an extension of time to the member to make an application to review the original decision.
DECISION
I set aside the decision made on 17 October 2006, as affirmed on 19 October 2015, to determine under s 30(1) of the Defence Force Retirement and Death Benefits Act 1973 the applicant’s percentage of incapacity in relation to civil employment as Class C with effect from 2 October 2006. In substitution it is determined that Mr Seizovic’s incapacity in relation to civil employment is between 30% and 60%, and that he be classified as Class B with effect from 2 October 2006, being the day following his discharge from the Navy.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
............................[SGD].........................................
Associate
Dated: 1 May 2018
Date of hearing: 20 December 2016 Date final submissions received: 17 May 2017 Advocate for the Applicant: Mr G Blake Counsel for the Respondent Mr R Schulte
Solicitors for the Respondent: Australian Government Solicitor
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