Tumath and Defence Force Retirement and Death Benefits Authority
[2005] AATA 855
•2 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 855
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/904
GENERAL ADMINISTRATIVE DIVISION ) Re ROBERT TUMATH Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Deputy President Don Muller Date2 September 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review to classify Robert Tumath’s percentage of incapacity as 40% class B with effect from 13 June 2003. ................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
DEFENCE – Defence Force Retirements and Death Benefits – amputation of left leg below the knee - little to moderate incapacity in relation to the employment types of driver and graphic designer – depressive disorder causally connected with loss of leg – small incapacity due to depressive disorder – 40% Class B – decision affirmed
Defence Force Retirement and Death Benefits Act 1973: ss30, 34
REASONS FOR DECISION
2 September 2005 Deputy President Don Muller 1.Robert Tumath retired from the Australian Army on 29 August 1993 on the ground that he was “medically unfit for further service”. He had suffered a badly broken left leg on 14 December 1992, when the motor cycle he was riding came into collision with a motor car which had backed out of a driveway.
2.On 22 December 1993 the Respondent determined under section 30 of the Defence Force Retirement and Death Benefits Act 1973 (the DFRDB Act) that Mr. Tumath suffered from a physical or mental impairment, namely, a “compound fracture tibia/fibula with muscle damage left leg” that was the cause of the invalidity or incapacity by reason of which he was retired from the Army.
3.Mr. Tumath was classified as having at least 60% incapacity in relation to civil employment, Class A, for the purposes of section 30 of the Act.
4.On 7 February 1996, Mr. Tumath’s left leg was amputated below the knee.
5.On 13 May 2003, the Respondent reviewed Mr. Tumath’s invalidity classification under section 34 of the Act and determined as follows:
(1)that the relevant kinds of civil employment which a person with Mr. Tumath’s vocational trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impediments) are driver, graphic arts assistant and technician’s assistant;
(2)that compound fracture tibia/fibula left leg with muscle damage resulting in left leg below knee amputation and causally connected impairment of right shoulder function constituted the prescribed impairment; and
(3)accordingly, pursuant to section 30 of the Act Mr. Tumath was classified as 40% Class B, with effect from 13 June 2003.
6.On 26 September 2003, the Respondent reconsidered the decision of 13 May 2003 and determined:
(1)that the relevant kinds of civil employment which a person with Mr. Tumath’s vocational trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) are graphic designer and driver;
(2)that compound fracture tibia/fibula with muscle damage left leg resulting in left leg below amputation constituted the prescribed impairment; and
(3)to affirm the decision to classify Mr. Tumath’s percentage of incapacity as 40% class B with effect from 13 June 2003.
7.Mr. Tumath seeks a review of the reclassification decision.
8.At the hearing, Mr. Tumath was represented by Mr. A. Harding of counsel and the Respondent was represented by Mr. A. Dillon of counsel.
9.Between the date of the reviewable decision and the Tribunal hearing, there were some new developments, namely:
(1)the Respondent discovered that Mr. Tumath had been playing baseball since late 2001;
(2)Mr. Tumath claimed that his capacity for civil employment was further decreased by his development of a psychiatric illness of post traumatic stress disorder (PTSD) and, or, depressive disorder (DD), both of which were causally connected with his left leg impairment; and
(3)Mr. Tumath claimed that he had developed a bad back, which further diminished his capacity for civil employment and that his back problems were causally connected with his left leg impairment.
10.At the hearing, Mr. Tumath abandoned his claim in relation to his shoulder problems. It became clear that his shoulder problems were not causally connected with his left leg impairment.
11.The Tribunal had before it the following documentary evidence, exhibits:
(1)The section 37 statement;
(2)Statement from Mr. Tumath dated 5 May 2004;
(3)Supplementary statement from Mr. Tumath dated 21 February 2005;
(4)Statement of Darryl Glen Silcox, Director of Coaching at All Stars Lightning Baseball Club;
(5)Statement from Executive Committee of All Stars Lightning Baseball Club and batting record of Mr. Tumath;
(6)Mr. Tumath’s batting statistics and fielding statistics;
(7)Statement of Dr. Saul Geffen dated 10 August 2004, specialist in Rehabilitation and Sports Medicine;
(8)Statement from Dr. Robert Stewart dated 11 March 2004, psychiatrist;
(9)Statement from Dr. Robert Stewart dated 16 September 2004;
(10)Statement from Dr. Robert Athey dated 12 February 2004, psychiatrist;
(11)Statement form Dr. Athey dated 30 April 2004;
(12)Statement from Dr. Athey dated 1 February 2005;
(13)Statement from Dr. Scott Fairbairn dated 27 October 2003, treated Mr. Tumath for shoulder condition;
(14)Statement from Dr. Fairbairn dated 31 October 2003;
(15)Statement from Dr. Fairbairn dated 17 November 2003;
(16)Mr. Tumath’s baseball statistics for 2001/2002;
(17)Mr. Tumath’s baseball statistics 2002/2003;
(18)Mr. Tumath’s baseball statistics 2004;
(19)Mr. Tumath’s baseball statistics 2004/2005;
(20)Baseball Club newsletter;
(21)Statement by Mr. Tumath to AMP dated 15 February 2002;
(22)X-Ray Report dated 11 January 2005; and
(23)Statement from Dr. Fairbairn dated 5 April 2004.
12.The Tribunal heard oral evidence from:
(1)Mr. Tumath;
(2)Dr. Evan Wilson Jamieson, consultant orthopaedic surgeon, whose report is at T30 of the section 37 statement;
(3)Dr. Saul Geffen;
(4)Dr. Robert Stewart;
(5)Dr. Jennifer Schafer, general practitioner, whose report is at T40, with clinical notes at folios 100 to 121 of the section 37 statement;
(6)Dr. Scott Fairbairn; and
(7)Dr. Robert Athey.
13.The following background matters are not in dispute and the Tribunal finds as follows:
(1)Robert Tumath was born on 11 February 1965.
(2)After leaving school he worked at various occupations, including kitchen hand, tyrefitter and labourer.
(3)He joined the Defence Force (Army) on 30 March 1982.
(4)He was discharged at his own request on 28 November 1986.
(5)He re-entered the Army on 28 June 1988.
(6)He was employed in the Army as a technician, driver and in the graphic arts area which involved photographic work and map overlays. He was training to become a recruit instructor when he was injured.
(7)On 14 December 1992, he was riding his motor cycle when he collided with a motor car which was reversing from its driveway. He suffered serious injuries to his left leg. The orthopaedic surgeon who treated him reported as follows:
“He was brought into casualty with a Grade 3 compound and comminuted fracture of his left tibia and fibia (sic). The injury involved a large skin defect medially and multiple contusions to the muscles. There were 4 large pieces of bone 3 of which came to hospital in a paper bag being picked up off the road. A portion of this bone was part of the ankle joint.
Robert Tumath has sustained a severe comminuted compound segmental fracture of his left tibia and fibula which has required a large skin flap. There is a high risk of chronic osteomyelitis and non union of the fracture and should this occur it will become apparent with time. He will ultimately require a bone graft.”
(8)He remained in hospital for approximately six weeks until the end of January 1993. For the rest of 1993 he had, from time to time, medical treatment of various kinds including excision of skin around pin sites, change of position of fixateur on the leg, debridement of fixateur sites, open reduction and internal fixation, removal of internal fixation, bone grafts and anti-infection treatment.
(9)Upon his release from hospital he used a wheelchair for about one month. He then used crutches for three months. He was eventually able to walk with the aid of a cane.
(10)He was discharged from the Army on 29 August 1993.
(11)On 7 June 1994, he began his first job as a civilian employee since leaving the Army. He worked for about one month as a commission sales representative. He gave up the job because he found that he was unable to do a lot of walking. He developed pain and swelling in his left calf and ankle.
(12)He then worked for about one month for a desktop publisher, from 18 July 1994 to 17 August 1994. He left to take up a position as a trades assistant to a screen printer. He only lasted for about a fortnight at the screen printer because he had “major problems that arose were distance walking to work due to lack of transport, lifting and prolonged standing involved…. constantly in pain and suffering from stiffness and severe swelling around the ankles and calf”.
(13)In September 1994, he worked for five days for a plan printer operator. He left the job for the same reasons as he left the screen printer.
(14)In October 1994, he worked for five days as an ice-cream van salesman. He left the job because he had difficulty operating the clutch on the truck.
(15)In 1995, he undertook a full-tine TAFE College course to improve his employable skills.
(16)He obtained a job with a graphic arts/desktop publisher on 3 May 1995 and remained in that position until 4 August 1995. During that time he had 4.5 days off work.
(17)By the end of 1995, his orthopaedic injury to his left leg had deteriorated to such an extent that it was decided to amputate his left leg below the knee. This was done on 7 February 1996.
(18)He began a degree course in 1997, a BA in Social Science, through the Jubilee International Christian College. He worked at the course for five years but did not complete the course. He did enough to be awarded a Diploma in Community Care and Counselling, and a Diploma in Youth Work. He did not go on to make use of his studies for the purpose of employment.
(19)From 28 October 1997 to 21 May 2001, he was a partner in a partnership which operated a business known as Life Prints Promotional Products. The business was not profitable and the assets which remained by May 2001 were sold.
(20)In 2001 he travelled to the United Kingdom for a seven week holiday.
(21)He also travelled to Thailand where he saw the sights of Bangkok and he went “rafting” on the River Kwai, that is as a passenger in one of the “long boats”.
14.The relevant parts of section 30 provide as follows:
“Classification in respect of incapacity
30. (1) Where a member of the scheme, 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
(2) In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:
(a)the vocational, trade and professional skills, qualifications and experience of the member;
(b)the kinds of civil employment which a person with the skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c)the degree to which the physical or mental impairment of the member that caused the invalidity or physical or mental incapacity because of which he or she was retired has or had diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);
(d)such other matters (if any) as are prescribed for the purposes of this subsection”
15.It is agreed between the parties that the specific employment types relevant to this review are driver and graphic designer.
The Baseball Matter
16.The question of Mr. Tumath’s ability to play baseball loomed large during the course of the hearing. It is the Respondent’s position that if Mr. Tumath is capable of playing baseball then he is also capable of working as either a driver or as a graphic designer.
17.Mr. Tumath gave evidence about his baseball exploits and he made the following points:
· He has no history of having played baseball in his youth.
· He began to take an interest in baseball because his son, and later his daughter, were playing in a local junior competition.
· He learnt the rules and started to fill in as an umpire for junior matches.
· He later became the coach of his children’s teams – because no one else would do it.
· He then took a more active role in the activities of the club of which his children were members.
· Eventually he began to fill in as a player when one of the adult teams was short of a player. The teams that he played in were of a very low standard, extremely minor league. His team-mates were mostly overweight middle-aged men who were simply out to get a bit of exercise and have fun.
· He did not play every weekend and when he did play he sometimes played only half a match.
· He has played baseball for the last four years. Most opposition teams allow for his disability but one team does not.
· Each match that he plays in lasts for about two hours. It is an outlet which he enjoys but he finds it very exhausting. After a match he “crashes”.
· He is the grounds co-ordinator for the baseball club. He sometimes operates the ride-on mower.
· He and his wife have been recognised in club newsletters as members who have given generously of their time for the benefit of the club.
18.I accept that the standard of baseball played by Mr. Tumath is very low. I accept that the mere fact that he plays baseball at that low level does not necessarily mean that he is fit for full-time employment. It would be a different matter if he was playing at a top level which required a significant degree of athleticism.
19.The medical witnesses who gave evidence did not place much weight on the fact that Mr. Tumath was playing baseball. Dr. Jamieson summed up his attitude to the matter by saying, “a job as a driver is probably more difficult than playing the odd game of baseball”. Dr. Geffen said that he knew of some very disabled people who were involved in sport but that the ability to work may be a different matter.
20.I believe that the fact that Mr. Tumath has been fairly heavily involved in the affairs of a suburban baseball club, the fact that he has had involvement in coaching and managing junior teams, that he has been playing the game for the past four years, albeit at a low level, is not irrelevant to the considerations in this review. It shows that he is capable of engaging in significant physical and mental activity and that he has the ability to engage with other people in a social environment.
21.There is also another aspect to the level of physical fitness of Mr. Tumath, which may be associated with his activities at the baseball club. Dr. Jamieson noted that Mr. Tumath’s right leg is very strong, which suggests that he has been using it for walking, or he has been exercising in a gymnasium. Dr. Geffen noted that Mr. Tumath’s left leg has good muscle bulk, which suggested to him that Mr. Tumath has been using his prosthesis on a regular basis. Dr. Jamieson also noted that Mr. Tumath has a full range of movement and good function in both of his knee joints, and normal movement in his hip joints.
22.The relevance of Mr. Tumath’s involvement in baseball is that it shows he has not withdrawn from society and that he does not lead an inactive sedentary life. I believe that he leads a fairly active life albeit within the physical limits of his having to wear a prosthesis.
Back Pain
23.Dr. Jamieson gave the following evidence about Mr. Tumath’s back condition:
·He examined an x-ray taken of Mr. Tumath’s back on 11 January 2005.
·It was a normal x-ray – with no significant changes and with no lumbar spondylosis and no intervertebral disc pathology.
·There is no damage to Mr. Tumath’s back.
·He expected that in a 40 year old man he would normally have seen some discogenic changes but in Mr. Tumath’s case there were none.
·There is a mild scoliosis which is positional – not structural.
·He has normal hip movements.
·Working as a graphic designer would not have any effect on back pain.
·The best management for back pain is walking or mobility, not inactivity.
24.Dr. Geffen is of the opinion that Mr. Tumath’s x-rays show that he has lumbar spondylosis. He said that the lumbar spondylosis could have been caused by the results of walking with an uneven gait whilst wearing a prosthesis on one leg. He also said that the lumbar spondylosis may have nothing to do with Mr. Tumath’s amputation. It “could have happened anyway – there is no way of knowing”.
25.Dr. Geffen thought that Mr. Tumath’s back condition could have some effect on an impairment for work – depending on the nature of the work. He put the potential impairment relating to Mr. Tumath’s back at between 5% to 10%.
26.I prefer the evidence of Dr. Jamieson, who is a consultant orthopaedic surgeon, over the evidence of Dr. Geffen, an expert in rehabilitation and sports medicine, in relation to an orthopaedic diagnosis.
27.Consequently, I find that the state of Mr. Tumath’s back is extremely good for a man of his age and if he happens to get an occasional twinge in his back from time to time it has nothing to do with his amputation and it is not causally connected to the impairment which caused his physical incapacity at the time of his retirement.
The Left Leg Impairment
28.The impairment has to be assessed in relation to the employment types of driver or graphic designer. There is agreement between the medical witnesses that Mr. Tumath would have great difficulty driving a truck or any vehicle which required him to use a clutch. They also agree that he would be unsuited to any driving job which required him to load or unload items which were heavy or bulky. However, the other types of driving jobs for which he could be suitable are light parcel delivery and driving a taxi.
29.Dr. Jamieson made the following points:
·Mr. Tumath has good soft tissue over the bone at the end of his amputation. There is the potential for some friction and sweating where the skin is folded and there is evidence of abraded skin on the back of his leg. It is a “good stump with a few problems”.
·Mr. Tumath has a full range of movement and good function in his knee joints.
·He has normal movement in his hip joints.
·Dr. Jamieson has seen a taxi driver with only one leg.
·People with below knee amputation can often run with a prosthesis.
·Mr. Tumath could drive a cab with an automatic transmission. His percentage incapacity for driving in general would be more than 30% but less than 60%. His percentage incapacity for taxi driving would be between 45% and 50%.
·If Mr. Tumath was working at graphic arts his concentration could be diminished by the drugs he takes – but people can function very well whilst on drugs.
·He may get some pain in his stump. He would have to have some mobility. He could use a chair with wheels. He may have some difficulty if he had to drive to the offices of other people.
·As far as the work of graphic designer is concerned there would be minimal to moderate incapacity, depending on the nature of the job, probably less than 10%.
30.Dr. Geffen has had extensive experience with amputees. A major part of his work involves “amputee clinics”. He made the following points:
·Mr. Tumath has a “bulbous stump” which is not ideal. It is better to have a cone shaped stump. The bulbous stump gives rise to problems with attachment to the prosthesis. Mr. Tumath has a socket type (“Icelandic”) prosthesis which is good for bulbous stumps. It is better suited to cold climates and can cause problems in the summer in Queensland because the wearer can get excessive movement causing skin infections and fungus to build up.
·As far as the occupation of driver is concerned, Dr. Geffen’s opinion was that if Mr. Tumath obtained a job in which all he had to do was drive an automatic car he would have no incapacity. On the other hand if he had to regularly get out of the vehicle and carry articles, he would be significantly incapacitated. He would be able to do the work if it was of such a nature that he could do it whilst wearing his prosthesis.
·As to graphic designer, Dr. Geffen thought that Mr. Tumath would not be able to do any job which required him to stand alongside a machine all day. On the other hand if his job required him to operate a computer there would be a zero incapacity. It would depend on the degree of physical work involved. The more the physical work the greater the incapacity.
31.Mr. Tumath gave evidence on this matter. He made the following points:
·He has had major problems with his stump. It is hypersensitive. He gets a lot of blisters, skin breaks and scarring.
·He bought the special “Icelandic” prosthesis which cost about three times a normal one. It has a special foot which is easier to walk with and will even allow him to run.
·Over time the sensitivity has dropped off.
·He has great difficulty being able to sit in a chair behind a desk and being expected to work. If he sits for any amount of time greater than 20 minutes, he gets a numbness in his right thigh and his left stump starts to twitch. If he then attempts to stand up he gets back spasms.
32.In my view the evidence in relation to Mr. Tumath’s left leg impairment and its impact on his incapacity in relation to civil employment, namely driver and graphic designer, is to the effect that his incapacity ranges from practically zero, if he could find the ideal employment in those fields, to moderately high. There are obviously some types of heavy physical work in those fields that he could not do, but there remain many options for which he would only be moderately incapacitated at the worst.
Post Traumatic Stress Disorder/Depressive Disorder
33.Mr. Tumath is somewhat ambivalent about his position on his psychiatric status. He does not fully accept that he has a psychiatric illness. He believes that from time to time he has been a bit “flat” and that he has needed “to do something about it”, but that it has not amounted to an illness. On the other hand he is prepared to accept that his irritability and lack of ability to concentrate may be indicative of a psychiatric illness and that he may have had it ever since his motor vehicle incident in 1992.
34.Mr. Tumath’s general practitioner, Dr. Jennifer Schafer, first started treating Mr. Tumath for depression about four years ago. Dr. Schafer noticed that Mr. Tumath complained of twitches, spasms, aches, pain, irritability, poor concentration and troubled sleep. She believes that Mr. Tumath is depressed. She thinks that he has altered moods out of proportion to his life situation. Dr. Schafer does not believe that Mr. Tumath has PTSD. She believes that he should stay on medication for depression. It is her opinion that he has “too many bad days to hold down a job”.
35.Dr. Stewart, psychiatrist, has been treating Mr. Tumath “on and off” since 14 January 2004, upon referral from Dr. Schafer. He last saw Mr. Tumath in October 2004. Dr. Stewart believes that Mr. Tumath suffers from a depressive syndrome with features of chronic dysthymia. Dr. Stewart provided two reports, 11 March 2004 and 16 September 2004 and he gave oral evidence to the Tribunal. He made the following points:
·Mr. Tumath has significant problems of grief associated with his loss of limb. His loss of his left leg in a below knee amputation contributed to the development of his psychiatric condition.
·It is possible that Mr. Tumath has PTSD but Dr. Stewart believes that Mr. Tumath does not have PTSD. If Mr. Tumath has PTSD it would have arisen out of the motor vehicle collision, not the later loss of limb.
·Mr. Tumath has been taking medication for depression. It has been helpful.
·The depression itself fluctuates and causes significant disturbance of Mr. Tumath’s mood, his motivation, his ability to gain pleasure from life, his relationship to his wife and children and also leads to a sense of apprehension about his future.
·The traumatic leg injury and the subsequent complications were significant factors in influencing his mood and contribute to the sustained disturbance.
·Mr. Tumath has chronic difficulties with his sleep brought about by his chronic mood disturbance, which is in turn linked to his history of chronic pain from his left leg.
·Mr. Tumath’s chronic mood disorder would have had a negative effect on his occupational function. Areas of function which would have been impaired include his ability to concentrate, his stamina, his ability to perform under pressure and to complete tasks appropriately and adequately and possibly his relationship with others in the work place.
·The history given by Mr. Tumath is consistent with the view that the psychiatric condition was present at time of discharge but may not have been recognised at the time.
·The prognosis of Mr. Tumath’s psychiatric condition is uncertain. Hopefully over time his mental state will improve and his general function will increase.
·Dr. Stewart was unable to comment on the degree of any incapacity for employment.
36.Dr. Athey, psychiatrist, examined Mr. Tumath on 9 February 2004. He provided three reports dated, respectively, 12 February 2004, 30 April 2004 and 1 February 2005. Dr. Athey also gave oral evidence to the Tribunal.
37.Dr. Athey initially diagnosed Mr. Tumath as primarily suffering from PTSD resulting directly from the motor vehicle incident, with a major depressive disorder due to Mr. Tumath’s subsequent loss of life-style and activities as well as the motor vehicle incident itself. Dr. Athey considered that Mr. Tumath’s PTSD contributed to his overall psychiatric state to a far greater degree than his major depressive disorder. In his report dated 30 April 2004 he said:
“In attempting to answer your question as to whether his ability to work as a driver or a graphic designer is a result of his post traumatic stress disorder or as a result of his major depressive disorder, I have attempted to focus on the effects of his post traumatic stress disorder, and would suggest that the post traumatic stress disorder itself, in my opinion contributes approximately 80% of the disability in both these areas, with 20% of the disability arising from his major depressive disorder.”
38.Dr. Athey painted an extremely gloomy picture of Mr. Tumath’s ability to work at being a driver or a graphic designer. He assessed Mr. Tumath’s incapacity for either job as greater than 60%, with the greatest emphasis on Mr. Tumath’s failure to be able to concentrate, possibility of road rage, difficulty in relating well with other people, irritability and fluctuating fatigue.
39.On 14 January 2005, the Australian Government Solicitor wrote to Dr. Athey and informed him about Mr. Tumath’s baseball exploits and explained to Dr. Athey that any incapacity of Mr. Tumath arising from PTSD is not relevant to these proceedings and that only his incapacity arising from depression is relevant in assessing Mr. Tumath’s overall incapacity. In reply Dr. Athey said the following (among other things):
“Clearly, there is a difference between the history I obtained from Mr. Tumath and the information supplied in your letter.
I therefore must question whether I obtained a truthful history from him.
Assuming the information in paragraph 5 is correct, one must concede that Mr. Tumath may have minimised the positive aspects of his functioning, that is, emphasised the failures and losses. This would be consistent with the thinking in Major Depressive Disorder.
To play competitive baseball does require a heightened concentration and an ability to relate to other people.
Therefore, if the information in paragraph 5 is correct, I am led to the conclusion that Mr. Tumath emphasised the negative aspects of his illness.
Mr. Tumath’s symptoms of Post Traumatic Stress Disorder, which is an anxiety disorder, suggested that he only had a mild variation of this disorder.
The predominant symptoms when I assessed him were those of a Major Depression. I also note that I assessed his Global Assessment of Functioning at 45, which places him in the serious symptom range.
Global Assessment of Functioning of 45 suggests that there is a significant impact on daily functioning. A person with this degree of impairment would normally not be capable of working, but may be able to play some sport, if it was one of a few pleasures left to them.
I would suggest that his overall ability to work as a driver or graphics designer, both of which require long periods of concentration and attention, would still be in the moderate – 30% to less than 60% range.”
40.Mr. Tumath gave evidence that the main problem he has experienced with the employment he has attempted to undertake is his poor concentration. He also said that he makes too many errors; he is not reliable; he is impatient; he is extremely irritable; he is socially withdrawn; he prefers to stay at home; he has short term memory problems. He denied that he suffered from road rage. He said that he has ceased taking anti-depressant drugs since mid 2004. He believed that the drugs had bad side effects and that they were making him fat.
41.I am satisfied that Mr. Tumath has suffered from a depressive disorder which arose out of or developed from the fact that he lost his left leg (below the knee) which caused him distress in that it affected his lifestyle, relationships with his family and impacted on his financial security.
42.I find that Mr. Tumath’s depressive disorder is “causally connected” to his left leg amputation and consequently “causally connected” with the physical incapacity by reason of which Mr. Tumath was retired, within the meaning of those terms in section 34 of the Act, the relevant parts of which are:
“Reclassification in respect of incapacity
s.34 (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;
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).”
43.I find that if Mr. Tumath has PTSD, which is not agreed upon by the medical witnesses, it did not arise out of the medical problems associated with Mr. Tumath’s left leg. The medical witnesses agreed that any PTSD could only have arisen out of the collision itself. It could have created a fear in Mr. Tumath of death or serious injury. That is, PTSD could have arisen out of the collision irrespective of whether Mr. Tumath suffered an injury or not. Therefore, PTSD is not causally connected with Mr. Tumath’s left leg incapacity. It was that incapacity by reason of which he was retired. Consequently, pursuant to section 34 of the Act, PTSD is not relevant to this review.
44.It is difficult to assess the level of incapacity referable to depressive disorder. Mr. Tumath’s treating psychiatrist was unable to put a figure on it.
45.Dr. Athey put Mr. Tumath’s incapacity in the moderate range. However, I believe that Dr. Athey did not fully take into account the fact that he was given an extremely negative version of Mr. Tumath’s life style. A version which I do not accept to be accurate.
46.As I said above, I do not accept that Mr. Tumath is as socially withdrawn and inactive as he has attempted to portray. (See paragraph 20, 21 and 22 above).
47.Consequently, I do not accept Dr. Athey’s assessment as accurate. I believe that the incapacity due to depressive disorder is fairly minimal.
Assessment
48.I accept that Mr. Tumath suffers from a not insignificant incapacity due to his left leg amputation below the knee. However, the observations of Drs. Jamieson and Geffen that there are amputees in the community who are gainfully employed accords with the observations that any member of the community would have made on many occasions.
49.I do not accept that Mr. Tumath has a high percentage of incapacity in relation to civil employment. I believe that the classification of 40% Class B with effect from 13 June 2003 is extremely fair.
50.The decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 24 February 2005
Date of Decision 2 September 2005
Counsel for the Applicant Mr. A. Harding
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Mr. A. Dillon
Solicitor for the Respondent Australian Government Solicitor
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