Sugden and Defence Force Retirement and Death Benefits Authority

[2004] AATA 478

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 478

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/83

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALAN JAMES SUGDEN

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Michael Sassella, Senior Member
Dr J D Campbell, Member

Date14 May 2004

PlaceSydney

Decision The decision under review is affirmed.

[sgd] M J Sassella

Senior Member

CATCHWORDS

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS – Invalidity Benefit – member retired because of arthritis, intervertebral disc lesion, knee reconstruction – incapacities to lift, twist, bend, stand for prolonged period – civil employment person with skills, qualifications and experience might reasonably undertake – relevant civil employment is product assembler, youth worker, driver, rail and transport driver, clerk – member to be assessed in relation to civil employment as clerk - member assessed as 50% incapacitated for relevant civil employment – decision affirmed

Defence Force Retirement and Death Benefits Act 1973 ss 26, 30(1), 34(1), (1A), (1B)

Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286

Re Buck and Defence Force Retirement and Death Benefits Authority (AAT 9055, 15 October 1993)

Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424

REASONS FOR DECISION

May 2004 Michael Sassella, Senior Member
Dr J D Campbell, Member

RESULT

The tribunal has decided that the decision of the authority, taken in May 2002 and confirmed in December 2002, was the correct decision.  Mr Sugden qualified for a 50% class B benefit from 14 June 2002.

BACKGROUND

1.      Alan James Sugden (“the applicant”), born 16 December 1964, was in the Australian Army (“the army”) from 15 May 1985 until 10 September 1995 when he was discharged as medically unfit for service.  He qualified for an invalidity benefit under the Defence Force Retirement and Death Benefits Act 1973 (“the Act”)[1]. This was granted initially as a 50% class B benefit. Later it was reviewed and raised to a 70% class A benefit. On 7 May 2002 a delegate under the Act reviewed Mr Sugden’s position and reduced the benefit to 50% class B. Mr Sugden appealed that decision. A delegate within the Defence Force Retirement and Death Benefits Authority (“the respondent”, “the authority”) left the original decision unchanged. Mr Sugden then appealed to the Administrative Appeals Tribunal (“the tribunal”).

[1] Section 26 of the Act states that, where a contributing member such as Mr Sugden is retired from the defence force on the ground of invalidity or of physical or mental incapacity to perform duties, he or she is entitled, on retirement, to invalidity benefit.

3. Under s 30(1) of the Act, for a member about to become entitled to invalidity benefit, “the Authority shall determine his [or her] percentage of incapacity in relation to civil employment and shall classify him [or her] according to” a percentage of incapacity according to a table:

Percentage of Incapacity	Class
60% or more	A
30% or more but less than 60%	B
Less than 30%	C

4. Section 34(1) of the Act permits the authority from time to time to review the member’s percentage of incapacity in relation to civil employment. That provision permits the authority to reclassify the member according to the table in [3] “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”.

5.      Section 34(1A) requires that in this process regard be had only to:

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

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

(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); and

(d)such other matters (if any) as are prescribed for the purposes of s 34(1A).

In accordance with s 34(1B)(a) of the Act, a “prescribed physical or mental impairment” is a physical or mental impairment of the member that was a cause of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not the impairment changed since the retirement. The term extends under s 34(1B)(b) also to any other physical or mental impairment of the member causally connected with a physical or mental impairment within s 34(1B)(a).

6.      Mr Sugden’s impairment was described as seronegative generalised arthritis; reconstruction operations both knees; L5/S1 intervertebral disc lesion in the authority’s original determination.  The civil employment against which he was assessed was clerk, driver and labourer.  The upwards reclassification in 1996 involved similar descriptions of his qualifications for payment except that, in relation to the knee problem mention was made of reconstructions of anterior cruciate ligament tears and, as regards the arthritis, it was described as seronegative generalised psoriatic arthritis.  The 2002 review determined the incapacity as arising from the same conditions as in 1996 but widened the civil employment to include employment as youth worker, clerk, driver, labourer and storeman.  In the internal review conducted after Mr Sugden challenged the reduction to class B the kinds of civil employment regarded as relevant to Mr Sugden were product assembler, youth worker, driver and general clerk. 

7.      The issues that arise for the tribunal’s determination are:

(A)What are Mr Sugden’s vocational, trade and professional skills, qualifications and experience?

(B)What are the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake?

(C)What was the physical or mental impairment that was the cause of the invalidity or physical or mental incapacity by reason of which Mr Sugden was retired?

(D)What is the degree to which any physical or mental impairment of Mr Sugden, being a prescribed physical or mental impairment, diminished Mr Sugden’s capacity to undertake the kinds of civil employment referred to in (B)?

(E)Was Mr Sugden’s percentage of incapacity in relation to civil employment as at 14 June 2002 such that his classification should have been altered to 50% and class B?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE

(A)      What are Mr Sugden’s vocational, trade and professional skills, qualifications and experience?

8.      These were set out in the respondent’s statement of facts and contentions and were confirmed in oral evidence.  Mr Sugden completed year 12 in 1982.  He then worked as a metal machinist assembling barbecues, air-conditioning and refrigeration units for two years before enlisting in the army in 1985.  In the army Mr Sugden completed basic driver training and obtained a licence to drive heavy vehicles weighing up to 15 tons.  For three years Mr Sugden drove a Uni-Mog truck in which he transported heavy artillery guns which he assembled and took apart before and after transportation.  In January 1989 he was posted to the School of Artillery as a transport bombardier.  In this position he performed mainly clerical and supervisory duties with a small amount of truck and car driving.  Between January 1993 and late 1994 he performed truck driving duties.  In late 1994 he returned to clerical duties until he was discharged on 10 September 1995. 

9.      After Mr Sugden left the army he was employed by Gowings as a mail and invoice clerk from May 1996 to July 1997.  From August 1997 Mr Sugden worked on a casual basis as a senior youth worker for the New South Wales Department of Juvenile Justice.  Mr Sugden completed a diploma of management at TAFE in 2000.  On 7 August 1999 Mr Sugden commenced full time employment as senior youth officer supervising detainees.  He still has this position.

10.     In summary, Mr Sugden has qualifications or experience in driving, assembly process work, clerical work, youth work and management.

(B)      What are the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake?

11.     The respondent initially suggested that the kinds of civil employment that one with Mr Sugden’s skills, qualifications and experience might reasonably undertake are product assembler, youth worker, driver and general clerk.  To this was later added road and rail transport driver.

12.     Mr Dawson, for Mr Sugden, queried the inclusion of clerical work.  He suggested that Mr Sugden did clerical work only in the army and as a small component of his current work for Juvenile Justice.  Mr Sugden was said to have few skills in this area, no qualifications, and experience limited to the management of trucks and what they contained.  In oral evidence Mr Sugden told the tribunal of his computer skills, describing them as basic.  He has experience with word processing, Microsoft Outlook email and the employer’s intranet.  He is not experienced with spreadsheets, accounting packages or inventory packages. 

13.     At the same time Mr Sugden told us of his youth work and functions as supervisor or unit manager.  He prepares reports, enters data in the form of client reports into a computer system, steps in to stop fights and assists youth workers as a “responsible person”. 

14.     We consider that clerical work requires fairly generic skills, although it increasingly requires more in the way of computer experience than Mr Sugden has at present.  It does seem to us that one with Mr Sugden’s level of experience would have little difficulty presenting as suitable for clerical work.  Experience preparing reports and entering data is indicative of the types of skills required in clerical work.  Computer skills at the level of those of Mr Sugden would form a satisfactory base on which to progress to use additional packages if required.  This approach seems to us consistent with the attitude expressed by the full Federal Court in Defence Force Retirement and Death Benefits Authority v House (1989) 91 ALR 286, 289-290.

15.     The decision by a three-member tribunal over which Deputy President Burns presided in Re Buck and Defence Force Retirement and Death Benefits Authority (AAT 9055, 15 October 1993) fortifies us in this.  At paragraphs 20 and 21 it was noted that the applicant had claimed that the tribunal could not find that he might reasonably undertake employment as a clerk because his experience consisted of only some nine months as a postal clerk, which experience he gained almost 30 years before in 1965.  Further, he was of the view that he did not have the necessary skills to perform the type of work required of a clerk.  He described the duties which he performed in the position as including selling stamps, receiving mail articles, packaging bags of mail and lifting them onto the scales and carrying them into the mail room, packing bags for pick up, picking up telephone coin tins from the phone boxes and returning these to the post office for counting and taking the coin bags to the bank. 

16.     The job also involved a lot of lifting, carrying, stacking and sorting of mail articles.  Mr Buck submitted that this exact position no longer exists and that the closest position to the one which he occupied in 1965 was that of a postal services officer which involved duties nothing like the duties which he had performed as a postal clerk.  He expressed the view that in terms of the duties which a job as a clerk usually entails, he had no clerical experience.  

17.     The tribunal found that Mr Buck not only had the mental aptitude necessary for clerical employment, but that his level of education (intermediate standard), the experience he gained while working for the post office, as well as the clerical type experience he would have gained whilst engaged in his sales positions and with the Royal Australian Air Force, supported a finding that a person with his skills, qualifications and experience might reasonably undertake this kind of work.  The fact that he only officially worked as a clerk some 28 years before did not detract from this finding, nor did the fact that he was employed specifically as a postal clerk rather than a clerk in some more general capacity.  Buck’s case is different in detail from the current application, but we consider that Mr Sugden’s juvenile justice work is more clerical in its requirements than Mr Buck’s post office work had been. 

18.     We find that the kinds of civil employment that one with Mr Sugden’s skills, qualifications and experience might reasonably undertake are product assembler, youth worker, driver, road and rail transport driver and general clerk.

(C)      What was the physical or mental impairment that was the cause of the invalidity or physical or mental incapacity by reason of which Mr Sugden was retired?

19.     As already noted [6], Mr Sugden was retired by the army because of arthritis, knee injuries and a lower back problem.  These conditions were present during his army service.  In 1987 he fell some six metres loaded with a rifle and a back pack when climbing a rope in a PT exercise.  He landed on his feet but experienced a fractured heel, back injury and shock throughout the body.  In 1988 he injured his left knee playing football.  He had reconstructive surgery in 1989.  This appears successful.  He injured the right knee in 1991 playing basketball.  He has had five operations on that knee in the years since and it has never completely resolved.  He developed sciatica in 1992 or 1993 as a result of some lifting.  The arthritis began in 1992.  There was some indication from Professor Sambrook that the onset of arthritis was related to the other conditions, notably the L5/S1 disc protrusion causing his gait to alter. 

20.     The incapacities flowing from these conditions were noted by the authority on 14 July 1995 as “unable to lift, twist, bend or stand” for a prolonged period.  Difficulties with driving were noted also. 

(D)      What is the degree to which any physical or mental impairment of Mr Sugden, being a prescribed physical or mental impairment, diminished Mr Sugden’s capacity to undertake the kinds of civil employment referred to in (B)?

21.     Dr P D Stevenson, a physician, saw Mr Sugden on 26 March 2002 and reported two days later.  His findings were:

·     Driver:  Assessing Mr Sugden as a driver of a taxi or as a chauffeur the incapacity would be “large”, 60%.

·     Clerk and youth worker:  Assessed as currently small, however the spread of arthritis into Mr Sugden’s hands was worrying and if it becomes worse he could be significantly disabled as general clerk or youth worker.  At the point of time in 2002 the incapacity was 20%.

22.     Dr Stevenson assessed also in relation to work as a labourer and found a large incapacity of 90%.  He gave an overall assessment of 50%, which is in the class B category. 

23.     Dr Stevenson had assessed Mr Sugden on 29 August 1995, reporting on 5 September 1995.  That assessment was used by the authority in making its original decision to grant an invalidity benefit on 24 October 1995.  Dr Stevenson then assessed an overall incapacity of 80%.  He then assessed in relation to driving, addressing heavy truck driving, which he saw as not an appropriate activity.  He assessed in relation to work as a clerk and as a labourer.  Dr Stevenson’s assessment in 2002 was less favourable for Mr Sugden because he regarded Mr Sugden’s physical condition as somewhat improved since 1995. 

24.     Dr Stevenson was available to give evidence at the tribunal hearing.  He explained his views. 

·     Mr Sugden’s knee condition was improved in 2002.  There was less fluid on the right knee than in 1995 and restrictions in range of movement had reduced from 20 – 30 degrees in 1995 to 10 – 20 degrees in 2002. 

·     Mr Sugden’s problems with his toes had improved.  In 1995 Dr Stevenson observed marked clawing of the right foot toes but by 2002 this had become “relatively modest”.  He had had surgery in 2001 to straighten his toes. 

·     Mr Sugden’s back condition had improved.  His range of movement was about 80%.  In 1995 forward flexion was only 45 degrees; extension was 20 degrees; lateral flexion and rotation were slightly reduced to 25 degrees (normal being 30 degrees).  Dr Stevenson found this improvement unsurprising as it is not uncommon in cases of lumbar degenerative disc disease.  The “acute phenomenon” resolves over time and the back settles.  He reduced his assessment of driving inpacity from 80% to 60% largely because of these improvements. 

·     Mr Sugden’s hands had deteriorated over seven years.  On examination in 2002 Mr Sugden had a stiff third left finger to which had undergone surgical exploration of the joints.  Mr Sugden was unable fully to straighten the finger and unable fully to flex it, missing the last 10 to 20% of each movement.  There was a slightly reduced grip and indications of low-grade synovitis.  In 1995 he had noted no swelling or arthritis in the hands and manual dexterity had appeared unimpaired.

·     In 1995 Dr Stevenson saw the psoriatic arthritis as affecting Mr Sugden’s right ankle and both elbows.  In 2002 it was noted as “active”. 

Dr Stevenson confirmed his reduced overall assessment but stated that a 50% incapacity is significant.  He said that his overall assessment would be 65% if Mr Sugden were not assessed for clerical work. 

25.     Dr G B Howe, a rheumatologist, is Mr Sugden’s treating specialist.  He provided a report dated 25 July 2003 in which he assessed Mr Sugden as follows:

·     Product assembler:  Because of arthritis in the hands the incapacity would be “large”.

·     Youth worker:  Because of arthritis in the feet and spine the incapacity for this work would be “small”.

·     Driver:  Because of arthritis in hands, feet, knees and spine, the incapacity would be “large”.

·     General clerk:  Because of arthritis in hands, feet, knees and spine, the incapacity would be “small to moderate”.

Dr Howe saw Mr Sugden from June 1995 and produced a report dated 7 June 1996. He did not, however, in that report assess Mr Sugden’s incapacity for the purposes of the Act. The 2003 report does not suggest any worsening in Mr Sugden’s condition since 1996 save for progression of arthritis.

26.     There were other medical assessments but these were dated and reflected more the position as in 1995 than in 2002, ie Dr R Pillemer (reporting on 28 March 1996) and Dr I Portek (reporting on 29 March 1996).  These had resulted in the 1996 redetermination.  In the present matter we are concerned with the position in 2002.

27.     Mr Sugden’s own evidence alerted us to the following:

·     He left the position at Gowings because he was not free to sit when he needed to do so, because he had to lift, twist and use ladders and because the travel by rail to reach work caused problems.  We pause to comment that this explanation is credible given the incapacities listed above in [20] which the respondent accepted.

·     In his youth work Mr Sugden is both a youth worker and co-ordinator.  He can do the assigned duties, partly through delegation of some functions.  He also uses medications to deal with pain.  His current employer is unaware of his impairments.  He has not been medically examined yet he is fully accepted as a member of the State superannuation scheme.  He cannot take youth groups on hikes or bushwalks because of his knee, foot and back problems.  Youth groups play tennis, basketball and touch football but Mr Sugden does not play because his arthritis would make it unsafe.  In his case work he does filing and typing.  He sits for periods of 20 to 30 minutes at the keyboard.  He utilises some handwriting but gripping the pen is painful so he does as little handwriting as possible.  He sometimes has to lift heavy files.  He avoids using his left hand for this.  He finds youth work manageable because it allows him to sit or stand at will or to move around.  His roster allows him three days off after six days on duty.  Mr Sugden avoids taking sick leave related to his impairments by maximising his recreation leave and rostering.  He did, however, take eight weeks sick leave for his foot operation in 2001. 

·     He feels he could not work as a taxi driver or chauffeur because he cannot drive long distances and cannot lift luggage.

·     When his classification was reduced in 2002 Mr Sugden thought his condition had in fact deteriorated.  The arthritis had spread.  He allowed that his toes were improved as a result of the 2001 surgery.

28.     We had access to the Australian Bureau of Statistics Australian Standard Classification of Occupations (“the ASCO”)[2] and its descriptions of the work involved in occupations of relevance, ie product assemblers, welfare associate professionals, driver, general clerk and road and rail transport driver.  Considering each of these, the elements that would seem to cause Mr Sugden problems because of his impairments are set out below.  We also provide our views on Mr Sugden’s capacity to perform each of these types of work given his relevant impairments.  We have based our assessments on the ASCO descriptions and the evidence in [21] to [27].

·     Product assembler:  punching or drilling holes in parts or assembled products, assembling parts by nailing, screwing, gluing, dowelling, rivetting, crimping, soldering or spot welding wire and components, fitting hardware items such as hinges, catches and knobs and attaching or fastening jewellery or jewellery parts to fabricate necklaces, brooches and earrings.  The particular impairment limiting his abilities to do this work revolves around the advancing arthritis.  There are few other tasks that we feel he could perform with any facility from among the list of tasks of a product assembler.  We see his incapacity for this role as large, to use the term adopted by Dr Howe. 

·     Youth worker:  none of the tasks listed in the ASCO would cause Mr Sugden any difficulty as result of his impairments.  The incapacity level would be minimal.

·     Driver:  it is difficult for us to see that Mr Sugden has any capacity to work as a driver and this is because of his retirement-related incapacities.  His arthritis compromises his ability to grip a steering wheel.  His lumbar spine condition compromises his ability to sit in a driving position for any length of time.  His lifting, bending and twisting difficulties compromise his ability to work as a taxi driver or chauffeur.  His disability driving is large.  We have not identified the tasks in the ASCO that would cause problems but we feel no requirement to do so as the general proposition that he might work as a driver is so unrealistic.  The incapacity level is large.

·     Road and rail transport driver:  assisting with loading and unloading operations.  The other listed tasks would appear possible for Mr Sugden, however for the same reasons as related to driving generally we doubt that Mr Sugden could do the basic task of spending a normal day driving what are described as “trucks, buses, cars and trains”.  The incapacity level is large.

·     General clerk:  there could be some difficulty operating business machines but this seems more a matter for the future at which time Mr Sugden could seek a fresh determination.  The other tasks are within his capacity despite his impairments.  The incapacity is little.

[2] note the remarks of Davies J in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 regarding the proper assessment of the percentage of incapacity. This is rich material worthy of a direct citation from pages 432-433:

“Thus, the terms of s 34(1A) fit well with the concept of ‘incapacity for work’ which was enunciated by the High Court of Australia in Arnotts Snack Products Pty Limited v Yacob (1985) 57 ALR 229. While the Tribunal in Re Bos laid some emphasis on diminution of earnings and loss of income, Mason, Wilson, Deane and Dawson JJ, Brennan J dissenting, emphasised that the concept of partial incapacity for work is that of reduced physical capacity, by reason of disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work rather than whether or not the injured employee suffered actual economic loss.

“I do not need to deal with these matters further.  The remarks in Re Bos and in Steele v Defence Forces Retirement Benefits Board (No.2), (supra), are still a good guide to the approach that must be taken, notwithstanding that they must be read in the light of the provisions of s 34(1A) and the view of the majority in Arnotts Snack Products Pty Limited v Yacob, (supra).

“Since the introduction of the provisions of s 34(1A), there have been a number of decisions which, read without care, might be thought to suggest that s 34(1A) requires a limited evaluation which calculates the number of areas of work that would have been available to the recipient member, having regard to his skills and qualifications, apart from his impairment, then calculates which of those areas of employment are now open to him and then calculates a mathematical percentage accordingly.  Thus, in Re Foster and Defence Force Retirement and Death Benefits Authority (1980) 2 ALN No.121 at p 1034, the Tribunal said,

‘It then becomes necessary under s 53 [of the Defence Forces Retirement Benefits Act 1948 (Cth)] to take the following steps :

1To identify the vocational trade and professional skills, qualifications and experience of the applicant;

2To identify the kinds of civil employment which a person with the skills, qualifications and experience of the applicant might reasonably undertake;

3To identify the degree to which the physical impairment of the applicant has diminished his capacity to undertake the kind of civil employment identified pursuant to 2.

The degree of diminution ascertained in accordance with 3 is the percentage of incapacity in relation to civil employment referred to in s 53 of the Act as relevant on a reclassification. ...’.

“These remarks in Re Foster should not be read, however, as intending that ‘the degree’ mentioned in par (c) of s 34(1A) of the Act relates only to a reduction in the range of employment opportunity. If, for example, it has been found that the range of employment opportunity has been restricted as a result of the prescribed physical or mental impairment by, say, 40%, that percentage is not necessarily to be taken as the percentage of incapacity in relation to civil employment. Such a course of reasoning would not be well based in experience. Most employees hold one job at a time and many, particularly skilled tradesmen and professional persons, undertake one type of work throughout the whole of their working life, notwithstanding that they may have a capacity and even a qualification to undertake some other employment. 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. In making the determination, the concept of incapacity for work as enunciated in Arnotts Snack Products Pty Limited v Yacob, (supra), Steele v Defence Forces Retirement Benefits Board (No.2), (supra), and Re Bos and Defence Force Retirement and Death Benefits Authority, (supra), should be kept in mind.”

30.     Thus, our task is to make a non-arithmetical value judgment of the extent to which, expressed in percentage terms, and taking into account only the matters set out in s 34(1A), Mr Sugden has suffered incapacity to engage in civil employment brought about by his physical impairments. 

31.     We find that Mr Sugden has lost most capacity to undertake civil work of a physical or mixed physical and intellectual character.  We find that he has also lost the capacity to do much civil work requiring fine manual dexterity.  Mr Sugden’s earlier work experience equipped him in the main for these types of civil employment.  We find, however, that he has a good level of capacity for work of a clerical, managerial, largely sedentary character despite his impairments.  We consider that the appropriate value judgment is that he had no more than a 50% incapacity in relation to civil employment stemming from his impairments as at the date of the reviewable decision. 

(E)      Was Mr Sugden’s percentage of incapacity in relation to civil employment as at 14 June 2002 such that his classification should have been altered to 50% and class B?

32.     The conclusion in (D) means that a class B benefit is appropriate. 

CONCLUSION

33.     The tribunal has decided that the decision of the authority, taken in May 2002 and confirmed in December 2002, was the correct decision.  Mr Sugden qualified for a 50% class B benefit from 14 June 2002. 

DECISION

34.     The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella, Senior Member and Dr J D Campbell, Member

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

Dates of hearing  29 January and 23 February 2004
Date of decision  May 2004
Counsel for the applicant          Mr Neale Dawson
Solicitor for the applicant          R L Whyburn & Associates Solicitors
Advocate for the respondent     Ms Nicole McCurdy, ComSuper