Shibble and Defence Force Retirement and Death Benefits Authority
[2003] AATA 1204
•28 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1204
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/810
GENERAL ADMINISTRATIVE DIVISION ) Re MARK ALBERT SHIBBLE Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal P. J. Lindsay, Senior Member Date28 November 2003
PlaceSydney
Decision The decision under review is set aside. The tribunal determines that the applicant’s percentage of incapacity in relation to civil employment on 14 June 2000 and since that date has been in excess of 60 per cent. He is reclassified as class A with effect from that date. (sgd) P.J. Lindsay, Senior Member
CATCHWORDS
Defence – defence force retirement and death benefits – invalidity – physical impairment – reclassification of applicant’s incapacity - determination of applicant’s capacity in civil employment – decision set aside – applicant’s incapacity determined to be class a
Defence Force Retirement and Death Benefits Act 1973 ss.30, 34, 99.
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286
Defence Force Retirement and Death Benefits Authority v O’Fee (FCA, unreported NSW G71 of 1984, 6 June 1985)
Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 1 ALD 31
Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156
REASONS FOR DECISION
28 November 2003 P. J. Lindsay, Senior Member 1. Mark Albert Shibble (the applicant) has applied to the tribunal for a review of a decision made on 14 June 2000 by the Defence Force Retirement and Death Benefits Authority (the Authority) under the Defence Force Retirement and Death Benefits Act 1973 (the Act). The background to this application is that the Authority acted under s.34 of the Act to change Mr Shibble’s invalidity classification from class A to class B. This followed the Authority’s decision that his percentage of incapacity in relation to civil employment was 50 per cent and not 60 per cent as had formerly been the case. The Authority’s decision meant that Mr Shibble’s invalidity benefit payable under the Defence Force Retirement and Death Benefits scheme was reduced by about half. Mr Shibble asked for the decision to be reconsidered, but he was unsuccessful, the Authority affirming the decision on 18 May 2001.
2. At the hearing, Mr M Perry of counsel appeared for Mr Shibble and Mr Dubé from the office of the Australian Government Solicitor appeared for the Authority. Mr Shibble gave evidence as did Dr M Wearne, orthopaedic surgeon. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T documents) and the exhibits tendered at the hearing.
applicable legislation
3. Under the Act, members of the Defence Force superannuation scheme are entitled to invalidity benefits on retirement where they retire on the ground of invalidity or physical or mental incapacity to perform their duties. The following provisions of the Act are relevant to determining entitlement to pension benefits:
Section 30 Classification in respect of incapacity
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
…
s.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.
(1B) In subsection (1A), prescribed physical or mental impairment, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:
(a) a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b) any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).
(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
4. Mr Shibble was born on 22 December 1965 and enlisted in the Australian Army on 29 June 1983. He completed a ten day storeman tech course on 30 March 1984 but gained no other qualifications while in service (T82). The service medical records note that in September 1985, he strained his back and experienced pain in the low lumbar region and right leg while lifting boxes at work (T5, T6). Despite treatment, Mr Shibble continued to have low back pain. In November 1993 he suffered a fracture of the right radial head at work. Surgery on 14 March 1994 removed the right radial head as the fracture had not healed well (T54).
5. Mr Shibble was given a medical discharge from the Army on 29 July 1994. He applied for benefits under the invalidity provisions of the Act and was referred to Dr S Baddeley, orthopaedic surgeon, for assessment. On 19 December 1994 the Committee of Alternates assessed Mr Shibble’s incapacity to undertake civil employment as a storeman at 40 per cent and classified him as class B under s.30. Based on Dr Baddeley’s report (T81) the Authority accepted that Mr Shibble’s incapacity at retirement was an inability to do prolonged or repetitive heavy lifting and prolonged or repetitive driving over rough terrain, due to his low lumbar pain, and pain and restriction in movement of the right elbow. The impairments that caused Mr Shibble’s invalidity retirement were determined to be “L4/L5, L5/S1 intervertebrae disc degeneration (with small disc protrusion) and chronic right elbow pain following excision right radial head” (T83-124). There were to be reviews of his classification every two years.
Dr Pillemer’s report
6. At Mr Shibble’s request, the Authority reconsidered its decision of 19 December 1994. To assist in the task, the Authority arranged for the applicant to be examined by Dr R Pillemer, orthopaedic surgeon, on 27 June 1996. At the time of the examination Mr Shibble was not working. He had not worked since his discharge in July 1994. He was trying to find a job through the Commonwealth Rehabilitation Service (CRS) but employers were reluctant to take him on once they were aware of his back problem. Dr Pillemer noted that Mr Shibble expressed great interest in becoming a gunsmith as he could sit and stand at will and would not have to do any heavy lifting. CRS was considering it. The history noted (T121) that for the last six months Mr Shibble had been attending a tech course as a fitter/machinist which he enjoyed and was coping with, although it was aggravating his back and elbow conditions.
7. In relation to the back, Dr Pillemer’s examination found marked restriction in low back movement. Dr Pillemer reported that the lower lumbar region was the site of the discomfort and when symptoms deteriorate they go down the posterior aspect of the applicant’s right leg as far as his knee. Prolonged standing made his symptoms worse, as did bending and lifting. His right elbow was symptom free when at rest and doing normal activities including eating and dressing, but any stress to the elbow caused aching and occasionally it became painful. The discomfort was usually over the postero-lateral aspect of the elbow region but while doing the tech course, he was experiencing discomfort down the medial aspect of the right forearm towards his right little finger. Examination of the upper limbs showed a full range of shoulder movements bilaterally and full rotational movements, but some restriction of right elbow movements.
8. Dr Pillemer found the applicant to be a very straightforward and open person who did not exaggerate his complaints of pain or discomfort. In his opinion Mr Shibble had suffered disc damage at one or both the lower two lumbar levels but without nerve root irritation. Mr Shibble had been left with moderate restriction of right elbow movement of flexion and extension and intermittent discomfort when the elbow is stressed. Dr Pillemer concluded:
I do not feel that Mr Shibble would be fit to work as a Store Person, which requires a lot of bending and lifting, and the patient informs me that if he does lift 12kgms a few times during the day, this will always significantly aggravate his symptoms later. He also cannot sit for long periods and therefore would have problems with office work. He also has difficulty getting in and out of trucks which is part of his work as a Storeman.
In a subsequent report dated 5 August 1996 (T123) Dr Pillemer stated that he regarded the applicant’s impairment to work as a storeman as being large, ie. 60 per cent to less than 100 per cent, as a result of the combined effect of his back and right elbow conditions.
9. Consequently, the Authority redetermined Mr Shibble’s incapacity for civil employment and on 13 September 1996 classified him as 60 per cent, class A (T127).
10. On 7 October 1997 Comsuper, on behalf of the Authority, sought information about Mr Shibble’s current employment status. He advised that he had obtained employment with a firm, Brummels Sports Store (Brummels), as a temporary, part-time gunsmith in January of that year (T130). He also advised that in March 1996 he enrolled in a TAFE course in fitting and machining. Subsequently, the Authority informed him that no change would be made to his invalidity classification (T132). A year later Comsuper again asked the applicant for information. Mr Shibble advised that he had obtained temporary, full time work as a gunsmith at Brummels but had taken 37 days off in the previous twelve months due to the disabilities that caused his retirement (T134). He was informed on 8 December 1998 that no change would be made to his invalidity classification (T136).
11. Comsuper sent Mr Shibble a further request for information on 7 February 2000. He advised that he had undertaken employment as a part-time security officer and had been employed by Personal Protective Services since June 1999. He had taken 15 days off in the previous twelve months due to disabilities that caused his retirement (T138).
12. Leading up to the Authority’s decision of 14 June 2000 when it changed Mr Shibble’s invalidity classification, the Authority had noted that, at the time of his initial classification, the only employment in question was as a storeman. In the interim, however, Mr Shibble had obtained work in a gunsmith business and as a security guard..
13. In connection with a review of Mr Shibble’s classification, Dr R Jackson, consultant orthopaedic surgeon, examined the applicant on 8 May 2000.
Dr Jackson’s report
14. Dr Jackson’s report of 10 May 2000 (T142) stated:
Mr Shibble was medically discharged from the Army in 1995. He has obtained employment as a security guard. He states that he copes relatively well at the present time as he has a static guard position and is able to change position between sitting and standing at frequent intervals. He is, however, off work due to an acute aggravation of his low back problem.
…
Mr Shibble’s incapacity regarding his back is related to ongoing back pain and stiffness, leading to limited tolerances for sitting and standing, limited mobility and limitation with bending, lifting and carrying activities, or from working at heights.
As regards his right elbow problem, he has a stiff elbow with some weakness of his right arm and a limitation regarding lifting and carrying of weights, or working away from his body and above shoulder height.
…
With regard to Mr Shibble working as a storeperson, his impairment is Large – 60 to less than 100%.
As a gunsmith, his impairment is Moderate – 30 to less than 60%.
As a security officer, this depends upon the type of work he is doing. At the present time this is as a static guard and the impairment would only be Small – 10 to less than 30%. This could, however, increase to Moderate – 30 to less than 60% in other types of security work.
I consider that Mr Shibble’s overall assessment would be 50%.
…
In my opinion, the impairment in Mr Shibble’s back is not likely to improve and is likely to deteriorate with the passage of time.
I consider that the impairment in his right elbow is not going to improve and may slowly deteriorate over the passage of time due to the advent of degenerative change.
15. The Committee of Alternates acting for the Authority noted in its deliberations that Mr Shibble had been educated to year 10, which he completed in November 1982. Prior to entry into the Defence Force he had been employed as a storeman from November 1982 to June 1983 (T147). Mr Shibble’s in-service experience was as a storeman involving loading and packing, and he completed the Storeman Tech course on 30 March 1984. The Authority’s decision on 14 June 2000 was to reassess Mr Shibble’s incapacity as 50 per cent and change his classification to class B. It accepted Dr Jackson’s assessment that Mr Shibble would have:
-a significant restriction in performing the duties of a storeman and his degree of incapacity is large;
-some restriction in performing the duties of a gunsmith and his degree of incapacity is moderate;
-little restriction in performing the majority of duties of a security officer and his degree of incapacity is small.
16. Mr Shibble requested reconsideration of this decision (T150). His grounds were that the Authority had not changed the description of his condition and, further, the medical evidence did not indicate that his condition had improved and in fact the prognosis was that it would deteriorate. He also disputed the assessment of a small incapacity for security work. In support of Mr Shibble’s request for reconsideration of the decision of 14 June 2000, his solicitors referred him for examination by Dr R Thomson, medico-legal consultant surgeon.
Dr Thomson’s reports
17. Dr Thomson provided two reports. The first, dated 13 September 2000 (T154) dealt with the applicant’s back condition. Dr Thomson reported that Mr Shibble had suffered a lumbar back disability since 1985. Since then, the pattern has been fluctuating pain in the lumbar back, treated with physiotherapy, traction and medication. Mr Shibble had discontinued his employment as a gunsmith due to discomfort in the lumbar back. The condition was also causing difficulties with his security work. Dr Thomson reported that the pain is worse when Mr Shibble sits, stands or drives for long periods and he is unable to perform all of the duties of a security guard, such as chasing people and lifting heavy weights. Dr Thomson diagnosed lumbo-sacral spinal column disc degenerative disease. His prognosis was guarded. Dr Thomson considered that Mr Shibble was permanently unfit in respect of duties requiring a normal lumbo-sacral back, or the undue requirements of force, strength, stamina in respect of that part of his anatomy.
18. Dr Thomson’s report of 27 November 2000 (T159) dealt with the right elbow. The history referred to a fall in November 1998 and eventual excision of the right radial head in March 1994. Mr Shibble complained of constant aching in the right elbow, reduced range of movement of the elbow and reduced right grip strength. The elbow discomfort made it difficult to drive for long periods of time and he could not undertake strenuous duties as a security guard. Dr Thomson noted that shooting is Mr Shibble’s main recreational activity but his chronic elbow disability prevents participation. The prognosis was guarded in relation to the residual sequelae of the excision of the right radial head. In his opinion:
In respect of this problem, the patient would be permanently unfit for unrestricted duties as a Service Man, or other occupations including Store Man, Gunsmith, Security Officer, or any alternative form of lighter duties requiring a normal right upper limb/elbow, or the undue requirements of force, strength, stamina, impact activities or repetitive movements of the parts.
He would only generally be fit for lighter alternative duties where those requirements are definitely secondary or irrelevant.
19. As part of the Authority’s reconsideration of the decision to reclassify Mr Shibble, Comsuper asked Dr Thomson to provide an assessment of the degree to which his back and elbow injuries would affect his capacity for employment as a storeperson, security officer and gunsmith. Dr Thomson’s response was that he was unable to comprehend the Authority’s requirements (T167). Comsuper thus arranged for Dr M Wearne, consultant orthopaedic surgeon, to examine Mr Shibble.
Dr Wearne’s report
20. Dr Wearne examined Mr Shibble on 5 April 2001 and prepared a report dated 12 April 2001 (T170). Discussing his employment as a security officer, Mr Shibble said that in the period after the Olympics in September 2000, there had been a glut of security guards. The range of assignments had narrowed, and Mr Shibble was sometimes having to accept security guard work that did not suit his back condition. He could no longer choose the softer jobs that caused less physical stress to his back. Undertaking the more vigorous tasks of a security officer had increased Mr Shibble’s awareness of pain and stiffness in his back. Dr Wearne observed “A worrying feature is the amount of Panadeine Forte that Mr Shibble is ingesting in order to keep himself going. Six to eight tablets a day would have to be regarded as an alarmingly heavy dose.”
21. Dr Wearne found that Mr Shibble continued to suffer with a significant back disability due to the degenerative disease of the intervertebral discs at L4/5 and L5/S1. Pain and stiffness in the back reduced his capacity for sitting, standing, walking, bending and lifting. The applicant was unable to run and unable to perform tasks that involve heavy pushing and pulling. The disability in the right elbow reduced its range of movement and caused pain in the elbow when he attempts heavy physical work with his right arm.
22. Dr Wearne expressed his opinion about Mr Shibble’s capacity for employment as follows:
Mr Shibble’s diminished capacity for sitting, standing and walking together with some difficulty in entering and exiting his car are causing difficulties with his work as a security guard. In my opinion, the changes that have occurred in Mr Shibble’s employment over the last 11 months have increased his difficulties.
In my opinion, Mr Shibble’s reduced tolerance for bending and lifting caused by his back and right arm condition would seriously reduce his chances of successfully continuing with employment as a storeperson.
In my opinion, Mr Shibble’s difficulties in prolonged bending and lifting, due to his back and right arm condition would seriously interfere with his chances of successfully being employed as a gunsmith.
…
In my opinion, Mr Shibble’s capacity to undertake employment as a security office [sic] have been moderately diminished by his impairment ie 30% to less than 60%.
In my opinion, Mr Shibble’s capacity to undertake employment as a storeperson, have been diminished by his impairment to a large degree ie 60% to less than 100%.
In my opinion, Mr Shibble’s capacity to undertake employment as a gunsmith have been diminished by his impairment to a large degree ie 60% to less than 100%.
23. In reconsidering the decision to reclassify the applicant, the Authority prepared a discussion paper dated 18 May 2001 (T171). It stated that in approaching the task required by s..34(1A)(b) it had been guided by the classifications of kinds of employment set out in the publication Australian Standard Classification of Occupations (ASCO) 2nd edition, published by the Australian Bureau of Statistics. In its assessment of the reports of Dr Thomson and particularly Dr Wearne’s, the Authority considered that Mr Shibble was incapacitated to a large degree for the duties of a storeperson. The Authority noted that the duties of a gunsmith could largely be performed while sitting or standing at a bench and that there was opportunity to change position frequently. While it noted the difficulty Mr Shibble would have in the lifting required of a gunsmith and that prolonged use of handtools may cause problems for his elbow, the Authority considered his incapacity for duties as a gunsmith was no more than moderate. It reached this conclusion because the wide range of duties of a gunsmith would allow frequent change of function if necessary. As for security officer work, the Authority observed that the applicant was working full time as a security officer, averaging 22 days work a month. The Authority’s conclusion therefore was that Mr Shibble’s degree of incapacity for security officer duties was moderate.
24. The Authority confirmed the decision of 14 June 2000. Mr Shibble subsequently requested the tribunal to review the decision.
25. Mr Shibble’s solicitors arranged for him to be examined by Dr R Rivett, medico-legal consultant in musculoskeletal injuries, on 12 September 2001. Dr Rivett’s two reports dated 29 September 2001 were accepted in evidence and marked as exhibit A1.
Dr Rivett’s reports
26. On examination Dr Rivett found tenderness at the L4-5-S1 levels, the sacroiliac joints, paravertebral muscles and the right glutel. There was residual joint restriction and pain around the right elbow and weakness of hand grip. In his opinion, the applicant remained unfit for heavy lifting, excessive bending, prolonged sitting or standing, pushing, pulling or twisting, and for excessive, heavy or concentrated activities with the dominant right upper limb.
27.
In a further report dated 18 December 2001 (exhibit A2) Dr Rivett stated that he considered the applicant’s capacity to undertake employment as a security officer has been diminished by 60 per cent or more. In amplification he advised:
On looking through this list I find that things that would be difficult would be responding to alarms, checking travellers and their hand luggage etc, detecting and reporting shop lifting etc and moving by car or motor cycle between a number of establishments. What I would regard as being not feasible or advisable for him would be to observe and respond suspects to police etc and provide armed protection for specific organisations. He would be also unfit to act as a body guard or a crowd controller. As for a gate keeper that would depend on the type of gate and the type of people passing through it. I also note that personal requirements are for physical fitness. A man with a disc lesion cannot be regarded as physically fit, and add to this the problems he still has with his right arm, this would probably rule him out if he were re-examined for a particular situation.applicant’s evidence
28. Mr Shibble said that during his Army service he was trained in the use, handling, cleaning and dismantling of a variety of weapons including rifles, pistols, machine guns and rocket launchers. He has maintained an interest in rifles and guns.
29. He said he has not tried to find work as a storeperson because he was medically discharged from the army as unfit to work in that role. In evidence, he was asked to look at the ASCO’s description of the tasks performed by storepersons (T-176-346). He identified unloading of goods from vehicles and lifting to stack heavier items as having caused pain and stiffness in his back. Clearing the work site was difficult for him because pushing a broom was very hard on his back. Use of hand trucks and hydraulic pallet lifters in the movement of goods caused discomfort in his back and his elbow.
30. In the period immediately following his discharge he stayed in Darwin but could not get work. Eventually he came to Sydney. With assistance from the CRS he found employment and began working for a gunsmith. He started work with Brummels in January 1997 as an apprentice fitter and machinist. He had commenced the TAFE course, which is part of the four year apprenticeship, about twelve months earlier. The CRS had informed him that there is no trade qualification for a gunsmith as such. Mr Shibble said he was required to attend tech two days a week to learn the theory, and the rest of the time was spent in the workshop.
31. Mr Shibble described the work he performed from January 1997 until he left Brummels in February 1999. Mr Perry took him through the tasks of a gunsmith as identified at code 4115-19 in the ASCO (T176). Mr Shibble said that he found standing at the mill and the lathe for long periods, and sitting while inspecting firearms, physically hard work that caused him pain in the lower back. Mr Shibble explained that inspecting security firms’ firearms may require him to inspect up to 20 pistols. Each inspection required pulling the firearm apart and would take him about thirty minutes. He said that he experienced pain in the right elbow when dismantling, correcting and machining firearms. Replacing broken parts, reassembling the firearms, and treating and polishing the metal did not cause him trouble. But test firing the weapons could cause him severe pain and stiffness to the back and elbow depending on the calibre. Repairs were tested by firing and he would have to fire about 20 rounds for a rifle and up to 50 rounds for a pistol. It could cause jarring of the elbow, occasional swelling, and back muscles could spasm.
32. Mr Shibble fabricated, fitted and assembled parts for small arms. He described this work as requiring precision and being time consuming. He had to be seated and he would develop stiffness and soreness in the back, and also the elbow if he had to file and fit a gun to the stock. Modifying guns to customer specifications was also a difficult task for him as he had to stand, hunched over at the lathe or the mill for long periods. Although Brummels did not manufacture ammunition, Mr Shibble thought that would be a difficult task for him because he would have trouble lifting and carrying large quantities of ammunition. The final task identified in the ASCO was shaping and modifying gunstocks, a task in which the applicant has experience. He described it as very precise work, generally involving filing of the stock by hand in order to fit it to the gun itself.
33. In about mid 1998 Mr Shibble said he noticed he was having more trouble with his back. Mr Shibble told the tribunal that his employer bought a firing range around this time.. Consequently his duties at the firing range increased. In addition to constant firing to test pistols, his tasks at the range now included the removal of the lead waste used in test firing and maintenance of the range. In particular, he found the sweeping up and carrying away of buckets of the lead waste was hard on his back. He also had to go up and down ladders to fix the pulley systems for the targets.
34. Disagreements with the employer over the number of days leave Mr Shibble was taking because of his back eventually led to his leaving Brummels.
35. In February 1999 Mr Shibble started casual work with Protec Security as a security guard. For about six weeks he worked twelve hour shifts and spent most of the time sitting in a car guarding a building site. The prolonged sitting caused stiffness and soreness in his back and trouble with sleeping. He left that firm at the end of the contract and joined Personal Protective Services. At first he was doing door work at functions which involved walking around the three or four entrances, checking bags and security passes. On average he was working two to three shifts a week, and never more than a 40 hour week. He described the standing, for up to two hours at a time, very uncomfortable for his back.
36. After three to four months of this work he became a permanent, on-call guard. In this role he would stay at home but remain on 24 hour call for any kind of security work, such as break-ins when he would have to stand on site until repairs could be made to gates or windows. He was also called out for foot patrols and mobile patrols. Getting in and out of his car for a twelve hour shift caused his back to become very stiff and sore. Very occasionally he would be required to work four consecutive shifts and he could hardly move by the end of the week. Following the on-call work, which he thought lasted for about ten months until around June 2000, he returned to full time door work, with shifts on five days a week. He was instructed not to sit while doing this work and the constant standing made his back worse and he also had pains in his legs. That pain could start off as a dull ache, and end up being a sharp pain, and on bad days the pain would travel down to his feet and they would feel numb. To relieve the pain in his legs, Mr Shibble said he would sit down, or move around a bit and then sit down for a while. He noted that it was not always possible to sit while performing some security jobs. He increased the quantity of Panadeine Forte he was taking from 40 to 100 a month.
37. Mr Shibble, who holds a security guard’s licence, was asked about the tasks that the ASCO refers to in the category ‘Guards and Security Officers’ (T176-345):
8311-11 Security Officer
Security Guard
Patrols and guards industrial and commercial property, railway yards, stations and other facilities.
Skill Level:
The entry requirement for this occupation is completion of compulsory secondary education and higher qualification. Registration or licensing may be required.
Tasks include:
· patrols areas and checks doors, windows and gates for unauthorised entry
· watches for irregularities such as fire hazards, malfunctions of machinery or equipment, lights left on, leaking water pipes and unlocked security doors
· issues security passes to authorised visitors and gives directions
· records times of entry and departure of authorised persons and times of inspections
· monitors alarms and contacts supervisors, fire brigades or police by telephone or radio if security is breached
· detects and investigates shoplifting, fraud and other unlawful acts of employees or patrons of business establishments
· prepares reports, questions suspects, obtains statements and gives evidence in court
· patrols railway yards and railway stations to maintain order and prevent vandalism
· may check people and their hand luggage to detect concealed weapons and explosives
· may carry out crowd control
Specialisations:
Mobile Patrol Officer
Railway Patrol Officer
Store Detective38. Mr Shibble said that he would find detection and investigation of shoplifting and unlawful acts on business premises to be particularly difficult because it would require long periods of standing. He notices back pain after about an half hour of standing. His only attempt at apprehension was unsuccessful because he was unable to catch the suspect. He thought he would be unable to patrol rail yards and stations because he would be required to remain on his feet all day and that would be very hard on his back. Checking people and searching their belongings for concealed weapons would usually involve a lot of standing and thus would be difficult. Crowd control and trying to restrain people would be hard for him. In relation to the specialisations, Mr Shibble said that he has performed mobile patrol officer work when he was working as an on call guard. Over a five day week, he felt the driving involved would make his back very sore.
39. Mr Shibble said that when he was called out for security work, he would be required to work a twelve hour shift and drive. In answer to Mr Perry he was unable to explain why Dr Jackson’s report referred only to static security work and omitted to mention his driving shifts. He did not recall Dr Jackson asking him any questions about his work as a gunsmith. Mr Shibble also noted that Dr Jackson reported referred pain down only the right leg whereas in May 2000 he was often experiencing such pain down both legs when his back was bad.
40. Although Dr Jackson noted that in May 2000 the applicant was taking the muscle relaxant Diazepam and anti-inflammatories, Mr Shibble said the report did not record that he was then taking about six Panadeine Forte a day. At the time of his discharge in 1994 he was taking anti-inflammatories, Panadeine Forte and at night Diazepam and a sleeping tablet if necessary. He explained that he does not take Diazepam at work because it makes him drowsy. From mid 1998, when his duties at the gunsmiths increased, he started taking four Panadeine Forte, two higher strength anti-inflammatories, and the Diazepam and sleeping tablet if necessary. During on call security work he would need only four Panadeine Forte if he was not called out but would increase the number if his back was playing up. On a bad day, he said he would take eight Panadeine Forte, in addition to the other medication. In answer to Mr Dubé he said there was never a day when he has not taken any Panadeine Forte. Mr Shibble’s general practitioner advised him in around July 2002 to stop taking Panadeine Forte and the anti-inflammatories because he had been passing and vomiting blood. The tribunal received in evidence a summary prepared by the GP, Dr Cotton, of the types and quantities of medications Mr Shibble has been taking since May 1998 (exhibit A4).
dr wearne’s evidence
41. Dr Wearne was called by the respondent. In his view Mr Shibble would find the work as a gunsmith easier to manage if he could move around, change position and stand rather than bend over too much. Under cross-examination Dr Wearne agreed that given the pathology affecting Mr Shibble’s lumbar spine, the applicant could experience pain radiating down both legs and such symptoms would prevent him from standing for long periods. Also, this symptomatology would prevent the applicant from sitting for long periods. If Mr Shibble were seated while bending over to do fine work, repairs and modifications, Dr Wearne would accept that he would develop problems after 20 to 25 minutes. He agreed that, since the MRI scan in 1990 that showed a bulge at L4/5 and L5/S1, it was reasonable to assume that there would be a continuing deterioration of the lumbar spine. He would accept that the combination of the back condition and elbow problem would make it very difficult for Mr Shibble to carry buckets of lead waste and maintain the range’s pulley system of targets.
42. Dr Wearne confirmed his opinion that the applicant’s back and elbow conditions caused him to suffer a large degree of incapacity for employment as a storeperson and as a gunsmith. So far as security officer work was concerned, Dr Wearne’s view was that Mr Shibble would find it difficult to work full time on mobile patrols.
43. In Dr Wearne’s opinion, suspending Mr Shibble’s pain killing treatment would make it difficult for him to work. Moreover Dr Wearne agreed that having regard to the type and quantity of medication that Mr Shibble has been taking since 1994, painkillers in combination with anti-inflammatories and muscle relaxants, he has a significant pain problem. Ingesting drugs of that type and in such quantities could pose a serious risk to Mr Shibble’s internal health. Discussing potential options for treatment, Dr Wearne commented that if pain killing injections to facet joints and physiotherapy were not successful, there would be no alternatives because he did not consider Mr Shibble’s back condition was suitable for surgery.
consideration and findings
44. In reviewing the Authority’s decision to reclassify Mr Shibble’s degree of incapacity in relation to civil employment, s.34(1A) directs the tribunal to have regard only to those matters referred to in pars (a) to (d) of the subsection.
45. In relation to s.34(1A)(a) the tribunal finds that Mr Shibble has had experience as a storeperson both before and during his period of service, and completed a 10 day storeman tech course while in the Army. The tribunal is satisfied that, having regard to his skills, qualifications and experience, Mr Shibble might reasonably undertake employment as a storeperson.
46. The applicant has not obtained any qualifications since his discharge, although he did partially complete a TAFE course in fitting and machining. He was undertaking this program with a view to establishing a career as a gunsmith. While in the Army he was trained in the use of a variety of weapons, including pistols and rifles, and so had some relevant experience particularly in relation to firing, handling, dismantling and cleaning such weapons. He gained two years experience while working for a gunsmith. Mr Perry submitted that the applicant lacked the qualifications required to undertake employment as a gunsmith. He noted that the applicant did not complete the TAFE course in fitting and machining, which was claimed to be the relevant trade qualification. An affidavit by a solicitor acting for the respondent (exhibit R2) annexed certain material received from the Engineering Skills centre at the Sydney Institute of TAFE. Part of the material dealt with the fitting and machining subjects that were studied in the period from 1993 to 1996. Noting Mr Shibble’s evidence that he had completed nearly three years of the course in fitting and machining, Mr Dubé referred to the following passage from the Full Federal Court’s judgment in Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286 (at 289-290):
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 tribunal accepts the respondent’s submission and finds that Mr Shibble gained experience and skills while working at Brummels in many of the tasks of a gunsmith as identified by the ASCO and he might reasonably undertake employment as a gunsmith.
47. Since leaving Brummels in February 1999, Mr Shibble has been employed as a security officer. He holds the required licence to work as a security officer. His experience as a security officer has not included work as a store detective or foot patrols. Mr Dubé cited Defence Force Retirement and Death Benefits Authority v O’Fee (unreported NSW G71 of 1984, 6 June 1985) and further submitted that the tribunal should disregard Mr Shibble’s age, his injuries and employment situation when considering the kinds of civil employment that he might reasonably undertake. The tribunal agrees and rejects Mr Perry’s submission that the tribunal should focus on the particular type of security officer work that Mr Shibble was doing in June 2000 when the Authority made its decision to reclassify him. In doing so the tribunal notes the following passage from House:
One thing which is abundantly clear is that paragraph (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. (at 290)
The tribunal finds that Mr Shibble has experience in a number of security tasks as identified in the ACSO. His experience and his licence to act as a security officer satisfy the tribunal that security officer is a kind of employment that he might reasonably undertake.
48. The parties do not dispute that the prescribed physical impairments that caused the invalidity that led to Mr Shibble’s medical discharge were intervertebral disc degeneration at the L4/L5 and L5/S1 levels (with small disc protrusion) and chronic right elbow pain following the excision of the right radial head. The tribunal is satisfied that the impairment to the intervertebral discs is associated with pain radiating into both legs. Support for this finding is found in the report of Dr Pillemer in relation to the right leg and Dr Wearne’s oral evidence.
49. Turning to s.34(1A)(c), the tribunal must determine the degree to which those impairments have diminished Mr Shibble’s capacity to undertake employment as a storeperson, gunsmith or security officer. The tribunal is mindful of the following principles to be applied:
‘Incapacity in relation to civil employment’ is a wider concept than the ‘ability to earn income’. ‘Incapacity’ may be said to be ‘in relation to’ civil employment if the opportunities to engage in civil employment and to derive benefits from that employment are restricted by reason of the incapacity. (Re Bos and Defence Force Retirement and Death Benefits Authority (1977) 1 ALD 31 at 34)
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. (Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433)
50. There is abundant medical evidence, as well as the applicant’s evidence and history, to support the finding that Mr Shibble’s prescribed physical impairments have rendered him wholly incapable of working as a storeperson. The tribunal finds that the degree of his incapacity is large (s.30).
51. Mr Perry submitted that there has been a gradual deterioration in Mr Shibble’s back condition and that his incapacity is becoming greater as time passes. The applicant’s rate of ingestion of anti-inflammatories, muscle relaxants and pain killers was increasing as the work at Brummels became heavier. Mr Shibble’s evidence, which the tribunal accepts, is that he had to take more anti-inflammatories and painkillers in particular, from mid 1998 when his tasks were expanded and required more lifting, carrying and use of his arms in cleaning and maintaining the range.
52. Mr Dubé argued that Mr Shibble can do nearly all the tasks identified in the ASCO’s definition of the occupation of gunsmith. But some of those tasks, such as examining and dismantling firearms, required the applicant to sit for about 30 minutes while hunched over each weapon and increased the symptoms he experienced in his back. Similarly, the test firing required when repairing weapons, irritated both his back and his elbow conditions and caused muscle spasms. Fitting gunstocks and fabricating parts involved standing at the lathe and mill. Both activities caused him back pain.
53. Mr Shibble’s reason for leaving the work as a gunsmith, an occupation close to his hobby of pistol shooting, was discord with his employer over the number of days leave he was taking due to his back condition. He has not returned to TAFE to complete his fitting and machining course. Combined with the difficulty Mr Shibble has with the heavier work done by gunsmiths, such as making ammunition, and the problems he had with removing lead waste and maintaining the target pulleys, the tribunal finds that Mr Shibble would have difficulty in finding a gunsmith willing to employ him. The tribunal finds that his opportunities for employment as a gunsmith have been lost (cf Re Bos at 35). The tribunal is satisfied, therefore, that the applicant’s degree of incapacity for employment as a gunsmith is large.
54. Mr Shibble’s experiences as a security guard have tended to allow him to work in roles that have not been physically demanding. Even so, he has had to take large quantities of painkillers and anti-inflammatories. There are some duties such as foot patrols, store detective work including the apprehension of shop lifters and the more strenuous jobs such as crowd control, that he says he would be unable to do. Dr Jackson’s assessment of small incapacity for employment as a security officer was related to work that was static in nature. Such security work, however, is only a small part of the range of activities noted in the ASCO definition.
55. While the tribunal is mindful that its task is to review the classification of Mr Shibble’s capacity at the time of the Authority’s decision on 14 June 2000, it may consider all the evidence in doing so (Freeman v Defence Force Retirement and Death Benefits Authority (1986) 5 AAR 156). Dr Wearne’s opinion is that the quantities and combination of medications that Mr Shibble has been taking have posed a very serious risk to his internal health. This dependency suggested to Dr Wearne that the applicant suffers from a significant pain problem. But his opinion referred not only to the 6 to 8 Panadeine Forte that the applicant was taking on examination in April 2001 but also the high rate of ingestion of painkillers and anti-inflammatories for the six years between discharge and June 2000. His evidence supports a finding that Mr Shibble needed to take a dangerously high quantity of medications so that he could cope with the back and elbow symptomatology that he suffered while doing mobile patrols and door work, which were security tasks that he had performed prior to June 2000.
56. There are a number of considerations that the tribunal has taken into account in finding to its reasonable satisfaction that Mr Shibble’s percentage of incapacity in relation to employment as a security officer is 60 per cent or more. Mr Shibble’s prescribed physical impairments render him incapable of performing a number of tasks as a security officer, being tasks such as crowd control and store detective work that require strenuous activity. Other duties, including driving and standing for periods, worsened his back and leg symptoms. Thus he increased his already high level of medication. There is also the expert medical evidence of Dr Rivett, who after examination, assessed the degree of Mr Shibble’s incapacity for employment as a security officer as large, observing that the applicant’s prescribed physical impairments reduced his physical fitness, which is required for the majority of security officer tasks
57. Accordingly, the tribunal sets aside the decision under review. The tribunal determines that the applicant’s incapacity in relation to civil employment on 14 June 2000 and since that date has been in excess of 60 per cent. He is reclassified as class A with effect from that date.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member
Signed: .......................................................................................
AssociateDates of Hearing 22 August 2002 and 31 January 2003
Date of Decision 28 November 2003
Applicant’s counsel M Perry
Respondent’s solicitor Australian Government Solicitor
0
2
0