Smith and Defence Retirement and Death Benefits Authority
[2005] AATA 659
•8 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 659
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1997
GENERAL ADMINISTRATIVE DIVISION ) Re STEVEN SMITH Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date8 July 2005
PlaceSydney
Decision The decision under review is affirmed
.............................................
Ms N Bell
Senior Member
COMPENSATION – Percentage of Incapacity in Relation to Civil Employment – Applicant Reclassified as Class C – Issue of Applicant’s Skills, Qualifications and Experience – Issue of Types of Civil Employment Applicant Might Reasonably Undertake – Issue as to the Impairments Causally Connected with Retirement from RAAF – Class C Assessment is Correct Degree to which Impairments have Diminished Applicant’s Ability to Undertake Certain Kinds of Civilian Employment.
Defence Force Retirement and Death Benefits Act 1973 (Cth)
Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286
Re Freeman and Defence Force Retirement and Death Benefits Authority (1984) 6 ALN N143
Re Davis and Repatriation Commission (unreported AAT 3285)
Cocks v Commissioner for Superannuation (1990) 21 ALD 297
Re Rayment and Commissioner for Superannuation AAT Decision No. 5322, 23 August 1989
Whiteford & Commissioner for Superannuation (1987) 14 ALD 321
Thompson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424
Re Colin Patrick Buck and Defence Force Retirement and Death Benefits Authority (AAT S92/299, 15 October 1993)
REASONS FOR DECISION
8 July 2005 Ms N Bell, Senior Member 1. Mr Smith, born on 23 June 1964, joined the Royal Australian Air Force (RAAF) on 26 June 1984 as an Apprentice Electrical Fitter and qualified as an Electrical fitter in 1985. Mr Smith was discharged as medically unfit with the rank of sergeant on 18 February 2001.
2. On 23 February 2001 Mr Smith was classified under section 30 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (“the Act”) as 40% Class B with effect from 19 February 2001, the day after the date of his discharge.
3. On 15 October 2002, the Defence Force Retirement and Death Benefits Authority (“the DFRDBA”) reviewed Mr Smith’s invalidity classification under section 34 of the Act and determined:
(i) That the relevant kinds of civil employment which a person with Mr Smith’s vocational trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) are electrical fitter, factory supervisor (wood processing machine operators);
(ii) That lower back pain and obesity constituted the prescribed impairment; and
(iii) Accordingly, pursuant to section 30 of the Act Mr Smith was classified as 15% class C with effect from 15 November 2002.
4. On 21 November 2003, the DFRDBA reconsidered the decision of 15 October 2002 and determined:
(i) That the kinds of civil employment which a person with Mr Smith’s vocational, trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) are electrical fitter and supervisor, wood processing machine operator;
(ii) That non-specific lower back pain and obesity constituted the prescribed impairment; and
(iii) To confirm the decision to classify Mr Smith’s percentage of incapacity as 15% class C with effect from 15 November 2002.
5. Mr Smith contends that unimpaired or incapacitated, at the time of discharge, he would reasonably have undertaken work of the nature of avionics technician; auto electrician; diesel mechanic; alarm installer; computer and computer network installer; supervisor of a technical workshop; domestic, industrial or commercial electrician – being those civilian occupations suited to his vocational trade and professional skills, qualification and experience.
6. Mr Smith contends that at the time of discharge he suffered the following medical conditions and injuries:
(i) Lower back pain and broad based disc bulge at L3/4 level, left postero-lateral disc herniation at L4/5 level apparently compressing on the exiting left L4 nerve root and left postero-lateral disc bulge at L5/S1 level possibly compressing on the exiting left L5 nerve roots.
(ii) Degenerative changes of the lumbar spine.
(iii) Left sciatica.
(iv) Medial ligament tear and medial meniscus injury together with degenerative changes in the right knee.
(v) Medial meniscus tear and tear of the medial collateral ligament together with degenerative changes in the left knee.
(vi) Talar dome fracture with ligament injury and degenerative changes in the left ankle.
(vii) Dislocation injury together with degenerative changes in the left shoulder.
(viii) Fracture dislocation requiring tendon transfer together with degenerative changes in the left thumb.
(ix) Soft tissue cervical spine injury together with degenerative changes of the cervical spine.
(x) As a whole body condition, obesity.
7. These impairments or incapacities, are contended by Mr Smith as diminishing his ability to undertake civil employment in the occupations listed above.
issues
8. The Act provides for invalidity benefits for members by way of the scheme set up by the Act when those members have been retired on the ground of invalidity or physical or mental incapacity to perform their duties. An initial classification of a member may be made under section 30 of the Act which provides for determination of a member’s percentage of incapacity in relation to civil employment and classification as follows:
60% or more Class A
30% or more but less than 60% Class B
Less than 30% Class C
9. Section 34 of the Act, the provision of most relevance to this application, allows the DFRDBA to review a member’s classification from time to time according to a number of matters set out in section s 34(1A) and 34(1B).
10. Section 34 provides relevantly:
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.
(1AA)
If, at a time when the Authority is reviewing, but has not yet determined, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a recipient member, the recipient member dies:
(a) the Authority must determine what was, immediately before the member's death, his or her percentage of incapacity in relation to civil employment; and
(b) where the Authority is satisfied, having regard to that percentage of incapacity, that, if the member had not died, the member would be reclassified and given a classification higher than that of the member at the time of his or her death, the Authority must reclassify the member under subsection (1) according to that percentage of incapacity, as if the member had not died.
(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).
11. The central issue in this application is therefore Mr Smith’s percentage incapacity for civilian employment as at 15 November 2002. Section 34(1A) provides for a number of matters to which I must have regard, to the exclusion of all others (Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286), and, with section 34(1B), raises a number of sub issues:
·What were Mr Smith’s vocational, trade and professional skills, qualifications and experience?
·What kinds of civil employment might Mr Smith, with these skills, qualifications and experience, reasonably undertake?
·What were the physical or mental impairments that were the cause, or one of the causes, of the invalidity or mental incapacity by reason of which Mr Smith was retired?
·What, if any, were the impairments causally connected with the above impairments?
·To what degree have the above impairments diminished Mr Smith’s capacity to undertake the kinds of civilian employment he might otherwise reasonably undertake?
mr smith’s vocational, trade and professional skills, qualifications and experience
12. Mr Smith’s evidence, which I accept, was that prior to joining the RAAF he completed an electrical apprenticeship training course at TAFE and had done some sales work and plumbing labouring work. In the RAAF he completed his practical training as an electrical fitter. He also completed training as an avionics technician and training in ground support work which entailed auto electronics and diesel mechanic work. In addition he did an alarm installers course and two management courses. His evidence was that all of this training could be recognised in civilian life through accreditation.
13. Mr Smith said that while in the RAAF he also did some computer cabling and some electronics work with computers. By the time he was discharged from the RAAF he was managing a technical workshop comprised of a fitter and turner, two mechanics and two electrical tradespeople. His work at this level included dealing with human and other resources issues and supervision of personnel.
14. Mr Smith now manages a non technical workshop in which non skilled people produce and repair wooden pallets. His work includes a significant amount of administrative work done at a computer. I note that, since November 2004, Mr Smith has undertaken total responsibility for the worksite as the Newcastle Service Centre Manager.
the kinds of civil employment mr smith, with these skills, qualifications and experience, might reasonably undertake
15. Mr Smith contends that, unimpaired or incapacitated, at the time of discharge, he would reasonably have undertaken work in the nature of avionics technician, auto electrician, diesel mechanic, alarm installer, computer and computer network installer, supervisor of a technical workshop or domestic, industrial or commercial electrician. The DFRDBA contends that the kinds of civil employment that a person with Mr Smith’s skills, qualifications and experience might reasonably undertake are supervisor – electrical fitter and factory supervisor, wood processing machine operator.
16. One key to the dispute between the parties in this respect appears to be Mr Smith’s experience as a supervisor in his last years in the RAAF and in his current job. In this respect, the DFRDBA drew my attention to a number of decisions to the effect that a person’s position in life or in the employment hierarchy prior to his or her incapacitation for a particular occupation should not be ignored (Re Freeman and Defence Force Retirement and Death Benefits Authority (1984) 6 ALN N143, and Re Davis and Repatriation Commission (unreported AAT 3285)
17. I note Mr Smith’s evidence that he was promoted to the rank of sergeant because at his level of skill and experience it was better to use him in a supervisory role. In that role he supervised staff, worked on inventory, dealt with human resources issues and generally did management work.
18. In his current job Mr Smith spends, according to his evidence, approximately 50% of his time doing administration and approximately 4 hours per day “on his feet”. This involves going around the workshop and monitoring the work that is being done. He said he does some physical work once or twice per month in that he has to train workers (most of whom have varied degrees of disability) in how to do the job and showing them how to do things. The job involves the placing of pre-cut timber into a machine. He said he also inspects pallets along with others who do so as well. The pallets weigh from 45 to 70 kilograms and it takes about 15 to 20 minutes to do a pallet inspection. The surveys are done on a rotational basis and, generally, when Mr Smith does an inspection he has other people lift the pallets for him.
19. I am mindful of the comment of the Full Federal Court in House (supra), to the effect that paragraph 34(1)(b) does not restrict a member to the employment in which he is now engaged in his impaired state.
20. Another key to the dispute between the parties in this respect is the degree of specificity with which relevant jobs must be described for the purposes of the section. In House (supra) the Court held that the relevant criterion is a broad one and relates to categories of employment rather than to particular occupations.
21. Mr Smith’s long service in the RAAF had him working first as an electrical fitter doing depot or workshop work and later operational level work directly on planes. He said that about half of the component parts he dealt with weighed approximately 30 kilograms and the remainder were smaller, lighter pieces. He later worked, after additional training, as an avionics technician. In 1993 he became a ground support equipment technician involving auto-electrical work on generators, vehicles, bomb loaders, test equipment, hydraulic rigs and generally on support equipment required for aircraft.
22. I consider that, given Mr Smith’s training and experience, the range of occupations contended by the Respondent is too narrow. It takes no account of his training and experience in avionics and auto electrical work. It appears, from the Australian Standards Classification of Occupations (ASCO) description of ‘Electrician’ which includes ‘Electrical Fitter’ that these additional qualifications and functions are not included in the description. The work of alarm installation and computer cabling would appear, however, to be covered by the general description of duties of electrician in the ASCO classification.
23. Conversely, Mr Smith has not, in my view, adequately reflected the effect of his supervisory experience, both in the RAAF and in his civilian employment. While it would not be unreasonable for him to undertake non-supervisory work of the kind for which he is qualified, his supervisory experience provides another level of opportunity that should be included in the range of work that he might reasonably undertake.
24. I conclude that the kinds of civil employment that Mr Smith, with his skills, qualifications and experience, might reasonably undertake includes that of electrician (including electrical fitter), avionics technician, diesel mechanic and auto electrician together with supervisory positions in relation to those kinds of work and general technical and non technical workshop supervisor.
the physical or mental impairments that were the cause of the incapacity by reason of which mr smith was retired and any other, causally connected, impairments
25. There is a distinction to be observed between the incapacity by reason of which Mr Smith was retired from the RAAF or, in other words, the circumstances that prevented him from performing his duties, and the impairment, or medical condition, that caused the incapacity.
26. Turning first to the question of the relevant incapacity, I note that this is a determination to be made by a person’s employer, rather than by the Authority (see Cocks v Commissioner for Superannuation (1990) 21 ALD 297 and Re Rayment and Commissioner for Superannuation, AAT Decision No. 5322, 23 August 1989.
27. Document T184 is an ‘Assessment of Incapacity by Medical Officer’ dated 16 February 2001, which describes Mr Smith’s incapacity for work as an electrical fitter as moderate and says he has “reduced mobility and capacity to stand for long periods, bend and lift”. I accept this as the best evidence of the incapacity on which Mr Smith’s retirement was based.
28. The next question to consider is the impairment that caused the above incapacity. This is open to be revisited in light of any further evidence available (see Whiteford & Commissioner for Superannuation (1987) 14 ALD 321).
29. The conditions that Mr Smith contends he suffered from at the time of his discharge are listed at paragraph 6 above. Only those impairments or conditions that can be said to have caused Mr Smith’s reduced mobility and reduced capacity to stand for long periods and to bend or lift, or are causally connected to thoase impairments, may be taken into account for the purposes of the assessment of his percentage incapacity under the Act. I will examine each of the conditions claimed by Mr Smith in turn.
31. Mr Smith’s low back pain was at the centre of the assessment resulting in the decision under review. At document T43, an ‘Employment Standard Review’ performed in January 1999, he was found to have chronic degenerative disease of the lumbar spine. This was confirmed again in July 2000 (T177). Mr Smith was also found, in February 2001, to have ongoing left sciatica (T183). However, this finding appears to be based on the history given by Mr Smith and I note there is only speculation and no firm radiological evidence of nerve root involvement (T129). The evidence of Drs Anderson, Jackson, Billet and McGill, discussed below, is also relevant to this conclusion. I consider that the appropriate description of the back condition giving rise to Mr Smith’s incapacity is “degenerative disease of the lumbar spine and lower back pain”.
32. There is no dispute that Mr Smith’s obesity, at least in part, caused his incapacity.
33. As to Mr Smith’s knees, I note that reference is made to “medial ligament tear and medial meniscus injury of his right knee” and to “meniscus injury left knee” in document T145 dated 12 March 1999. I note also that a Minute from the Air Force Directorate of Personnel dated 25 November 2004 (Exhibit R28) advised that reference was made to an injury to Mr Smith’s knee in the deliberations on his discharge. I also note that Dr McGill, Rheumatologist in his report of 8 September 2004, expressed the view that Mr Smith’s complaints of knee discomfort are related to his obesity. He expressed the same view in relation to Mr Smith’s complaints of left ankle pain. Dr T Anderson also considered that Mr Smith’s knee problems would be exacerbated by his obesity. On this basis, I conclude that Mr Smith’s injuries to both knees and degenerative changes in both knees, together with his ankle injury and degenerative changes in his ankle are causally connected to his incapacity.
34. As to Mr Smith’s claimed left shoulder condition, this too is mentioned in document T145. Although no mention is made of the condition in the Minute from the Directorate of Personnel, it is arguable that it is an impairment that would contribute to Mr Smith’s incapacity in lifting. However, I note that Dr T Anderson, Consultant Occupational Physician, in his report of 17 March 2004, found an almost full range of movement and strong, equivalent power in both upper limbs. In oral evidence Dr Anderson said that Mr Smith’s shoulder injury is consistent with a difficulty in working above shoulder height but made no comment on the impact of this condition on his ability to lift. Other expert medical witnesses made similar comment but did not address the impact of the condition on lifting. On this basis, and given the acknowledged effect of Mr Smith’s back condition on his ability to lift, the range of incapacity for which he was retired and the lack of evidence of any impact of his shoulder condition on his ability to lift, I do not consider that Mr Smith’s shoulder condition is a relevant impairment.
35. There is no evidence to suggest that Mr Smith’s thumb plays any role in the incapacity on which his retirement was based. Similarly, there is no evidence to suggest that Mr Smith’s cervical spine condition gave rise to incapacity with respect to mobility, standing for long periods, bending or lifting.
36. On this basis, I consider that the impairments that may be taken into account in assessing Mr Smith’s capacity to undertake the kinds of civilian employment identified above are degenerative disease of the lumbar spine and lower back pain, obesity, injuries to and degenerative changes in both knees and injury to and degenerative changes in his left ankle.
the degree of diminution, because of the above impairments, of mr smith’s capacity to undertake the above kinds of civilian employment
37. There remains for consideration the assessment of Mr Smith’s percentage incapacity to undertake the relevant range of civil employment. Davies J in Thompson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 said in relation to this exercise:
“The width of the range of employment 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 may preclude the person from working more than part time or intermittently. Thus the determination of a percentage 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.” (at para422)
39. Mr Smith said his lower back condition posed no problems for him as an overseer of others’ work, as he was in his last RAAF employment, but that it would prevent him from doing avionics work because climbing on and off aircraft would cause him difficulty. He also said that he would be unable to work as an auto electrician, avionics technician or diesel mechanic because he would not be able to bend over to work on a vehicle underneath the bonnet or get in underneath the dashboards of cars or access spaces in an aircraft. He also said that these limitations and his inability to lift would restrict him to bench work.
40. Mr Smith said that his knee problems make it difficult to walk far or to squat because he finds it very difficult to get back up again. He cited this limitation as affecting the same range of jobs. Similarly, he said, his left ankle prevents him from walking, running or crouching down. In addition, he said his left ankle makes it difficult to climb ladders, which is required for getting into aircraft.
41. I also note Mr Smith’s evidence concerning his last work with the RAAF. He said that his various conditions did not interfere with his performance of his employment duties there but prevented him from performing the physical fitness tasks required by the RAAF for field deployment.
42. The evidence of Mr Geoffrey Leahy, Mr Smith’s manager and direct supervisor, was that Mr Smith is not limited by his back condition in his performance of his duties at the pallet workshop. He noted that, in relation to inspecting pallets, he has requested Mr Smith not to lift pallets for inspection and that other staff are available to lift pallets for inspection. He referred to this as a minor aspect of Mr Smith’s duties. Mr Leahy said he is aware that Mr Smith has a bad back and has infrequently been in pain or under treatment but has never seen any signs of him having difficulty with standing or sitting and has observed him to walk normally at a normal pace, to stand erect and to walk briskly on occasions. Mr Leahy also noted that, since November 2004, Mr Smith has working as the Service Centre Manager for the Newcastle site and now has total responsibility for that site. He said he regards Mr Smith as having a long term future with the company.
43. Dr T Anderson, Consultant Occupational Physician, provided a report dated 17 March 2004 in which he canvassed all of Mr Smith’s conditions and, most relevant to this application, his back, left ankle, left shoulder and knees. Dr Anderson described Mr Smith’s back condition as significant dysfunction with neurological radiation down his left leg. In connection with Mr Smith’s lower back, Dr Anderson noted Mr Smith’s obesity. He described Mr Smith’s other conditions as very minor in comparison with his back and left leg conditions. Dr Anderson considered that Mr Smith is “just getting by” in his current job and said he is not fit for any hands on physical work but noted that he should be able to do practical bench work as an electrical fitter provided he had the opportunity of altering his physical position. He said that Mr Smith is fit for most semi-sedentary occupations.
44. In cross examination, Dr Anderson conceded that if the results of MRI’s were consistently that there is no nerve root impingement then it is more probable than not that there is no such impingement. He said it was even more unlikely that there is nerve root impingement given the results of sensation examinations that were conducted by Drs Billet, Jackson and McGill. Dr Anderson also agreed that if Mr Smith has a lack of sensation below his knee then that would be due to L4, L5 and S1 involvement but that would mean there would be areas above the knee that are also affected. He further agreed that if all areas above Mr Smith’s knee are unaffected then that would mean that the nerve roots of L4, L5 and S1 are not involved.
45. Dr Anderson considered that Mr Smith has an incapacity for light physical/semi sedentary work of approximately 10% and a very substantial incapacity for heavy physical work.
46. Dr R Jackson, Consultant Orthopaedic Surgeon, provided reports dated 12 September 2003 and 6 November 2004. He considered that many of Mr Smith’s responses during his examination were exaggerated and that there were non-organic factors present that influenced the clinical examination. However, he also considered, on the basis of an MRI scan report, that he has some degeneration of the lumbar spine, but was of the view that there has never been a positive indication that he suffered from L4-L5 nerve root compression.
47. Dr Jackson considered that, based on the responses given by him at the examination, Mr Smith’s degree of incapacity for the position of electrical fitter is 30% to 60% and for factory supervisor is 10% to 30% with an overall incapacity of approximately 40%. However, he maintained that it is impossible to assess accurately a person with Mr Smith’s “bizarre pain behaviour patterns”.
48. During his oral evidence, Dr Jackson was asked to take note of the evidence given by Mr Leahy as to his observation of Mr Smith’s performance of his current employment duties and to assume the correctness of that evidence. On doing so Dr Jackson altered his assessment of Mr Smith’s incapacity for work as a factory supervisor to 10% to 15% and concluded that he has an incapacity of approximately 10% for semi-sedentary work. He considered that his incapacity increases with heavy physical work.
Dr N McGill, Consultant Rheumatologist, provided reports dated 30 April 2004 and 8 September 2004. Dr McGill also reported “overtly false behaviour in an attempt to allege incapacity which was not genuine”. In particular he found on examination of Mr Smith that all muscle groups in the left lower limb could be overcome. According to Mr Smith this was not due to pain but, rather, to weakness. Dr McGill considered that this result was inconsistent with Mr Smith being able to walk. Dr McGill found no abnormal physical sign that was independent of his co-operation or reporting and concluded that all sensitive investigations of his lumbar spine have found no significant abnormality. However, Dr McGill accepted that Mr Smith does experience some genuine low back discomfort. He did not, however, consider that Mr Smith suffered from L4-L5 nerve root compression and found that his sensory distribution did not fit with the site of pain in his low back.
51. In relation to Mr Smith’s knees, Dr McGill considered he had some minor degenerative changes and thought his obesity may contribute to this.
52. Dr McGill considered that Mr Smith has an incapacity, in relation to all of his conditions, of approximately 10% to 30%. He acknowledged that he would have difficulty working as an electrician in a confined space and would be limited in relation to bending, squatting, lifting and carrying.
53. Counsel for Mr Smith urged me to take the view that a person who has any incapacity in relation to a job should be regarded as completely incapacitated for that job – that a person is either incapacitated for a job or not. I consider that this approach fails to take into account the reasoning in Thomson (supra) to the effect that a percentage diminution of capacity for civil employment may be comprised of a diminution of the range of employment opportunities or the hours at which a person may work at an unaffected range of jobs or the quality and nature of the jobs now available to a person. It is, as the Tribunal said in Thomson (supra), a value judgement and not a mathematical calculation.
54. I note that in the Tribunal’s decision in Re Colin Patrick Buck and Defence Force Retirement and Death Benefits Authority (AAT S92/299, 15 October 1993)
an assessment was made of incapacity for each type of employment and then an overall or global assessment was made weighting certain employment as appropriate. I propose to adopt a similar approach here.
55. I consider that I should be mindful, in this exercise, of Mr Smith’s progression into supervisory and management work in recent years, in the RAAF and in civilian employment. This reflects his “position in life” and the quality of work for which he is qualified. That is not to say that his technical qualifications and experience should be ignored, and indeed by the terms of s. 34(1A) I must not do so. However, in undertaking the “weighting” of employment opportunities available or no longer available to Mr Smith, I will give greater weight to the supervisory positions that form part of the relevant group of employment opportunities.
56. I find, on the evidence before me, that Mr Smith, because of his degenerative disease of the lumbar spine and lower back pain, obesity, injuries to and degenerative changes in both knees and injury to and degenerative changes in his left ankle (the relevant impairments), cannot perform heavy physical labour. None of electrician, avionics technician, diesel mechanic, auto electrician, supervisory positions in relation to those areas of work and general technical and non technical workshop supervisor (the relevant civilian employment) requires heavy physical labour.
57. I also find, on the evidence before me that Mr Smith would have difficulty with lifting, bending, climbing, crouching and standing for long periods due to his relevant impairments. Of the relevant civilian employment, this would interfere with the more active roles as an electrician and with the roles of auto electrician, avionics technician and diesel mechanic to a moderately high degree. In reaching this conclusion I am mindful of the evidence of Drs Anderson, Jackson and McGill and the disparity between Mr Smith’s evidence and reporting of his symptoms and their conclusions, on objective examination, as to the severity of his impairments. I consider that, while Mr Smith experiences pain, discomfort and limitations from his relevant impairments, their severity is somewhat overstated by him. I have had regard to the reports of Dr Schwarzer who has treated him for pain management but it appears that his assessments and opinion are largely based on mr Smith’s reports of the pain he experiences.
58. I do not consider that the relevant impairments would limit Mr Smith’s capacity to do electrical bench work, or any of the relevant supervisory jobs to any more than a minor degree. In this respect I am again mindful of the disparity between Mr Smith’s evidence of the severity of his symptoms and limitations and the objective assessment of the expert medical witnesses. I am also mindful of the evidence of Mr Leahy and Mr Smith’s ready admission that he was well able to perform the duties of his last role in the RAAF.
59. Given the weighting that I have determined to give the supervisory employment that could reasonably be undertaken by Mr Smith, I consider that his relevant impairments have diminished his capacity to undertake the relevant civilian employment by less than 30%. He thus falls within category C as provided in s30 of the Act.
decision
60. The decision under review is affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.
Signed: ...........[Linda Blue]...................................
AssociateDates of Hearing 6 September 2004, 10 May 2005, 11 May 2005
Date of Decision 8 July 2005
Counsel for the Applicant Mr T Edwards
Solicitor for the Applicant Marshall & Partners
Counsel for the Respondent Mr B Dubé
Solicitor for the Respondent Australian Government Solicitor
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