Wall and Defence Force Retirement and Death Benefits Authority
[2006] AATA 959
•10 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 959
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/451
GENERAL ADMINISTRATIVE DIVISION ) Re BRIAN FREDERICK WALL Applicant
And
DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate10 November 2006
PlacePerth
Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that the appropriate classification in respect of incapacity of the applicant, in accordance with s 30(1) of the Defence Force Retirement and Death Benefits Act 1973 (Cth), is Class A.
......[Sgd S D Hotop]..........
Deputy President
CATCHWORDS
RETIREMENT BENEFITS – defence force retirement and death benefits – invalidity benefit – prescribed physical or mental impairment – retirement impairment – causally connected impairments – civil employment – percentage of incapacity in relation to civil employment – classification in respect of incapacity of applicant is Class A – decision under review set aside
Defence Force Retirement and Death Benefits Act 1973 (Cth) s 30 and s 34
REASONS FOR DECISION
10 November 2006 Deputy President S D Hotop Introduction
Dr D Weerasooriya, Member 1. The applicant enlisted in the Australian Defence Force (Army) on 23 October 1984, and, following an injury to his lower back, he was discharged as medically unfit for service on 3 June 1986.
2. The applicant applied for invalidity benefit under s 26 of the Defence Force Retirement and Death Benefits Act 1973 (Cth) (“the Act”). A delegate of the respondent initially determined, under s 30 of the Act, that the applicant’s “percentage of incapacity in relation to civil employment” was 30% and that his classification in respect of incapacity was Class B. That determination was, however, subsequently varied by the respondent by determining that, as at 4 June 1986, the applicant’s “percentage of incapacity in relation to civil employment” was 60% and that his initial classification in respect of incapacity was Class A.
3. On 16 September 1992 a delegate of the respondent determined that the applicant’s “percentage of incapacity in relation to civil employment” was 60% and that his classification in respect of incapacity continued to be Class A.
4. On 2 March 2004, however, a delegate of the respondent reviewed the applicant’s classification under s 34 of the Act and determined that his “percentage of incapacity in relation to civil employment” was 30% and that his classification in respect of incapacity was Class B, with effect from 2 April 2004. That determination was confirmed by the respondent on 19 November 2004.
5. The applicant has applied to the Tribunal for review of the respondent’s decision of 19 November 2004.
The issue and the Tribunal’s Determination
6. The ultimate issue for the Tribunal’s determination is the applicant’s appropriate “percentage of incapacity in relation to civil employment” and classification in respect of incapacity, pursuant to ss 30 and 34 of the Act, as at 2 April 2004.
7. For the reasons which follow, the Tribunal has determined that the applicant’s “percentage of incapacity in relation to civil employment” is greater than 60% and that accordingly, his classification in respect of incapacity is Class A.
The Relevant Legislation
8. Section 26 of the Act provides that a contributing member of the benefits scheme established by the Act, who is retired on the ground of invalidity, is entitled to invalidity benefit.
9. Section 30 of the Act provides for the classification of a member in respect of incapacity for the purposes of invalidity benefit. Section 30(1) provides:
“(1) Where a member of the scheme, not being a member of the scheme to whom section 36 applies, is, or is about to become, entitled to invalidity benefit, the Authority shall determine his percentage of incapacity in relation to civil employment and shall classify him according to the percentage of incapacity as follows:
Percentage of incapacity
Class
60% or more
A
30% or more but less than 60%
B
Less than 30%
C”
10. Section 34 of the Act, which provides for the reclassification of a member in respect of incapacity for the purposes of invalidity benefit, relevantly provides:
“(1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.
…
(1A) In determining:
(aa) what is the percentage of incapacity in relation to civil employment of a recipient member; or
…
the Authority shall have regard to the following matters only:
(a) the vocational, trade and professional skills, qualifications and experience of the recipient member;
(b) the kinds of civil employment which a person with skills, qualifications and experience referred to in paragraph (a) might reasonably undertake;
(c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);
(d) such other matters (if any) as are prescribed for the purposes of this subsection.
(1B) In subsection (1A), prescribed physical or mental impairment, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:
(a) a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or
(b) any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).
(2) Where a recipient member is reclassified under this section, the Authority shall specify the date from which the reclassification has effect, and, on and after that date, the recipient member shall, for the purposes of this Part, be deemed to be classified under section 30 accordingly.
…”
11. Sections 31 and 32 of the Act provide for the rate of invalidity pay which is payable to a member who is classified as Class A, Class B or Class C (as the case may be).
The Evidence
12. The evidence before the Tribunal comprised the “T Documents” (T1-T161, pp 1-376) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), documentary exhibits (A1-A11) tendered by the applicant, documentary exhibits (R1-R9) tendered by the respondent, and the oral evidence of the applicant, Dr O Kay, Dr P McCarthy, Professor J Olynyk and Mr M Alexeeff.
The applicant’s evidence
13. The applicant was born in Perth in 1958 and was educated in Perth up to the level of Year 10 in high school which he completed in 1973.
14. The applicant’s evidence regarding his employment history after leaving school and before joining the Army may be summarised as follows:
·in 1974 he commenced an apprenticeship as a fitter-machinist with Western Mining Corporation in Kambalda, Western Australia;
·in 1975 his family returned to Perth and he transferred his apprenticeship to that of a motor mechanic which he completed in 1977;
·from 1978 to 1984 he did contract work for various employers as a motor mechanic, as a fitter/ welder, as a welder, and as a marine engineer.
15. The applicant tendered in evidence a letter from Mr T Hewitt, Chief Engineer, M G Kailis Exports Pty Ltd, dated 24 August 1982, regarding his employment with that company in 1979 (Exhibit A1). That letter states:
“With reference to Mr. Brian Wall’s experience with the Kailis Group of Companies, his details are as follows.
1 NEW VESSEL CONSTRUCTION
A. Fitting underwater gear – e.g. propeller, shaft and rudder.
B. Main engine and gearbox full installation – e.g. alignment, fuel connections and exhaust.
C. Hydraulic winching – installation of 50 GPM pumps for the catch hauling. Fitting of trawl winches and motors.
D. Steering system – installation of pump, rams and orbitrol, including all hoses needed.
E. Welding and Fabrication – hydraulic tanks, engine header tanks and pump bases.
F. Salt water pumps – installation of deck wash, condenser and bilge pumps.
2 COMPANY VESSEL REFITS
A. Mercedes Benz 846 top overhauls. Lister SR2 servicing and maintenance Cat 3408 and 3306 servicing.
B. Hydraulic servicing.
C. Salt water and bilge pump overhauls.
D. Exhaust system replacement, main and auxiliary engines.
E. Replacement of propeller shaft white metal bearings.
F. Anchor and trawl winch overhauls.
G. 24 volt electrics minor service.
H. Full sea trials on finalisation of vessel refit.
While Brian was under our employ he proved to be a reliable and conscientious worker that adapted quickly to all marine work.
…”
16. The applicant also tendered a Resumé which he said that he had prepared in connection with an application for the position of marine engineer with the Western Australia Police Water Operations Division in 1982 (Exhibit A2). That Resumé states:
“…
QUALIFICATIONS: Certificate Trade Studies – Automotive Mechanical.
W. A. Industrial Commission Final Certificate No. 18114.
No formal Qualifications as a Marine Engineer, but varied practical experience in marine field, including ‘K’ Class prawning trawlers, semi professional fishing boats, Pleasure Cruisers, Ski – Race Boats.
…
EXPERIENCE: Marine Engines:
Broad experience ranging from Marine Diesel (Cat, Mercedes, Ford, Lister) Petrol inboard (4 + 6 cylinder Mercury, V 8 Holden, Ford, Chevrolet, Volvo Penta) and various outboard motors.
Under Water Gear:
Maintenance and Installation of propellers, shafts, thrust nozzles, Keel Coolers, Rudders.
Pumps and Motors:
Installation / Maintenance and overhaul of Deckwash, Bilge, Fuel and Hydraulic Pumps including pump to electric motor, pump to Hydraulic motor, and pump to main motor fitment. Also design and construction of mountings and bases and installation of various drives and couplings. (Fenner, Belt, Univ. etc).
Pipe Work:
Design and Fabrication of main and auxiliary fuel systems, hydraulic pressure and return lines (welded and flexible), General Plumbing (Brine, hot water service, effluent) and welding and construction of systems (including pyrometer installation and lagging).
Hydraulics:
General experience on all relative marine, automotive, and agricultural hydraulics, including industrial hydraulics course at Fremantle Technical College (Course completed except for final three lessons owing to work commitments)
Winches:
Installation, overhaul and maintenance of Capstan and Drum type cable winches and anchor winches i.e. P.T.O., Hydraulic, and electric.
Electrical:
Broad range of auto electrical including motor, starter, alternator / Generator Teardown and Rebuild.
Welding:
Over 2 years employment as 1st class Welder, experienced in Oxy / Acetylene, Arc, M. I.G., & T.I.G., Ranging through Steel, Cast Iron, Stainless Steel, Aluminium. Employed in General Fabrication, experimental Agricultural Equipment and Construction fields, and as Foreman in Steel Fabrication and Assembly Workshop.
General:
Fully qualified Motor Mechanic with experience on entire construction, fitting out, and refit of vessels up to 28.5 metres, including welding, fitting, machining (Lathe, Mill, Radial Arm Drill, Tool and Cutter Grinder, Shaper, Key Slotter) and experience in various preventative maintenance systems.”
17. The applicant said that, in the course of his employment as a motor mechanic or welder with certain employers, his duties included truck driving and tow-truck driving. He said that he still holds an unlimited heavy articulated vehicle licence (Class HC-X) which authorises him to drive heavy vehicles other than road trains.
18. The applicant said that, upon joining the Army in October 1984, he completed 13 weeks of basic training and was then selected for testing for aptitude in Morse code with a view to undergoing training for the position of Operator Signals. He said that, during his training, he was able to progressively increase his Morse code reception speed as required such that he successfully completed the course and became qualified as an Operator Signals. He said that his training and experience as an Operator Signals did not include making or receiving voice transmissions by radio.
19. The applicant was next questioned about the circumstances in which he sustained his lower back injury in the course of his Army service. He said that he first injured his back when he slipped and fell to the ground from a raised plank while on an obstacle course during his basic training. He said that he subsequently aggravated that injury when he bent over to pick up a box. He said that his back condition was diagnosed as a spondylolisthesis. He added that his back condition has “got worse over the last few years” (Transcript, p 23).
20. The applicant said that, after his discharge from the Army, he went to the Commonwealth Employment Service and contacted various employers with a view to obtaining employment as a mechanic but he was unsuccessful. He added:
“Nobody would pick me up at the time because of the back injury.” (Transcript, p 23)
He said that at that time he was consulting Dr Anderson, an orthopaedic surgeon, who noticed that he was having “a lot of problems with anger and… with pain management” and that he was “in depression”, and Dr Anderson suggested that, for his “mental health”, he should “do some study”. He said that he was subsequently accepted for mature age admission to university and he decided to “read military history”. He said that he commenced part-time study for a Bachelor of Arts degree at Murdoch University in 1989 and completed the course and graduated with first class honours in military history in about 1994. He said he was subsequently approved for admission to the PhD programme and intended to write a thesis on the history of veterans’ welfare. He added, however, that, while he was researching that topic, he became “more and more depressed”. He continued:
“And I got to the stage I just couldn’t read at all, I couldn’t concentrate, I couldn’t focus, I just saw a couple of doctors about it and it didn’t get any better, so I just – I pulled out of the PhD.” (Transcript, p 24)
He said that he withdrew from the PhD programme in about 1996 or 1997. [The Tribunal notes, however, that in a “Personal Statement by Retired Member” dated 19 August 1999 (T98) the applicant stated that he was “currently enrolled part time as PhD student”.]
21. The applicant was questioned about the impact of his back condition on his activities. His evidence was as follows:
“Now, in relation to your health and if we can just start at your back condition, what sort of impact does that have you, how does it - how does it affect you, or restrict you?‑‑‑I've never been able to - before I joined the Army I was very fit and, you know, I passed all the medicals, I did all the right things, I was a member of East Fremantle Football Club, I used to train and work out in the football club gym, you know, with the players every - every week. I used to run, water ski, a lot of shooting, a lot of hiking, camping, very active, very outdoors. And I've done none of that since I - I haven't been able to play football with my boys. I haven't been able to - I don't do anything.
But in a physical sense, the sorts of limitations ‑ ‑ ‑?‑‑‑Can't lift.
- ‑ ‑ lift, can't lift?‑‑‑Can't stand for long periods. I can't sit for long periods. I have difficulty bending. I at times have difficulty washing. I sometimes can't get out of bed. When it's really bad I have to sleep, usually out on the sofa with my legs sort of in a - I lay on my back with my legs propped up on some very hard cushions. So that I sleep in a - like a sitting position, but laying down. Last time that happened I was there for nearly 18 months. It affects my sex life. I have a - problems - you know, I have a very understanding wife who, you know, appreciates that there's a problem there but she's also considerably younger than me and it - that impacts on our relationship. I don't lift my children, I don't work. I - yeah, it impacts on everything you do, you can't drive for long periods, you can't sit for long periods, you can't do any bloody thing for a long period at all.” (Transcript, pp 24-25)
22. The applicant was also questioned about the impact of his depression on his lifestyle. His evidence was as follows:
“In relation to the depression, the impact that it has on your lifestyle and you mentioned difficulty in sleeping, your memory?‑‑‑I've - I'm assuming it's the medication I have a problem with short term memory. I forget - depression prior to seeing Dr Kay was quite bad. I was crying all the time. I wasn't showering, I wasn't washing, I walked out the door one day with no pants on, I forgot to put pants on, so it was - it was getting - that's when my wife said: this is enough, we'll go and see a doctor. With the result of the medication I started vomiting after about 12 or 18 months I think after I got out of the Army, I was throwing up, well, I didn't know what it was at the time, but it - it was blood, but it appears just like a black - I was diagnosed with ulcers. The DVA, I think, at the time said they were caused through the anti-inflammatories. I vomit in my sleep from the GORD. In terms of the depression I feel I - if I'm off the medication which is, you know, if I'm off the medication for a day or so, I get angry again, I start to cry again. If I'm on it I'm fairly okay, but I suffer from really, really bad dry mouth and that's created Bruxism and I've now worn away the side of my teeth on one side of my mouth and had a couple removed because of the damage to them. I sleep a lot, or I don't sleep at all or I'll go three or four days without sleep and then I'll sleep consistently. I'm trying to balance that out. Very, very short periods. I tend to get very angry with people for - for what I think are good reasons, certainly the reason I get it out of proportion - I - sorry.
So your ability to relate to other people?‑‑‑Not good. No, I don't - I don't bond too well with too many people any more. I don't attend anything to do with Veterans any more. I stay away from the RSL and I stay away from the younger veterans where in groups because I - I get too upset about it, I get too angry and I end up saying or doing something that I regret later or I make an idiot of myself and - so I just find it easier just to keep to my own company.” (Transcript, p 26)
23. In cross-examination the applicant acknowledged that he has no formal qualifications as a welder. His evidence continued:
“…I was always hired on the basis of my qualifications. When you're hired as a tradesman in Tom Price for example, it doesn't matter what your trade is. I was - I have trade papers as a mechanic, but I was hired as a welder. Providing you have trade papers, that means you're entitled to the pay of a tradesman and the conditions and benefits of a tradesman, as you would remember from your own time or own experiences in any place, that there was very strong demarcation rules. And if I went to work somewhere, and I wasn't a tradesman, all the other tradesmen would stop work, because tradesmen got paid more than unskilled workers. Now, the fact that I was a mechanic by trade didn't prevent me working as a welder. The fact that I was a mechanic - all - all mechanics have a small component of welding in their trade anyhow, but I took it, I developed that further and made that a skill that I could do on its own. I worked actually for the Ag Department as a - for the Department of Agriculture on a 12 month contract as a welder.
But you never qualified as a welder?‑‑‑No. I never qualified as a rigger, which was actually the employment I was employed at in Tom Price, was as a rigger. Now, companies will - would employ you for a job that they have a slot for. When I went to Tom Price, they put me down as a rigger. My trade papers say motor mechanic. When I got there, I was a truck driver and a welder. What you're employed as is not really relevant within the company, particularly mining companies. They don't really care, they'll bring you in if they need a tradesman. So I worked variously as a - like for the Department of Agriculture, I was employed by the West Australian government on contract for one year as a welder, but my trade papers say none of that…” (Transcript, p 51)
24. The applicant confirmed that he separated from his first wife in June/July 1995 and that he consulted his general practitioner, Dr Yeap, around that time because he was feeling depressed. He added that he saw Dr Yeap “for a number of reasons”, including depression. He was referred to Dr Yeap’s clinical notes (part of Exhibit R2) in which a reference to his depression was recorded at consultations on 7 July 1995, 30 August 1995 and 27 September 1995 – in particular, on 30 August 1995 it was recorded that he was depressed, separated for 2 months, suicidal, manic, and that he did not want to see a psychiatrist. It was put to the applicant that the cause of his depression at that time was the separation from his wife. The applicant rejected that proposition and added that he had been “depressed for a long time prior to that” (Transcript, p 70).
25. The applicant confirmed that he had had an episode of depression immediately after he left the Army, and he added that he has been depressed from 1986 onwards. His cross-examination continued:
“Because you were angry?‑‑‑Oh, no, I don't - that's not ‑ ‑ ‑
You were very - you were very angry. You said that earlier?‑‑‑And I was in a shit load of pain. You know, I - I was - and I continue to this day and, you know, it's - it's all very well trying to shift it from one thing to another and say it's either my wife or my - you know, my ex wife or my marriage or something else is causing the problem. The problem was that I was angry and - and in pain and I was having trouble with the marriage anyhow and I'm not - I think it's absurd to try and differentiate and say, well, you know, you're depressed about this, this day, and you're depressed about that on that day…” (Transcript, p 71)
He acknowledged, however, that, when he consulted Dr Yeap in the period July- September 1995 for, inter alia, depression, his recent marriage break-up was probably a factor contributing to his depression.
26. The applicant agreed that he has been in the past, and continues to be, “angry” with the respondent because of its treatment of him in relation to the matter of his classification under the Act. He agreed that he was “furious” with the respondent when it reclassified him as Class B early in 2004. He said that when he first saw Dr Kay, Psychiatrist, in April 2004 he was “a mess”.
The medical evidence
27. The T Documents and the bundle of documents comprising Exhibit R2 contain voluminous documentation regarding the applicant’s medical condition in the period from 1984 to 2004. More specifically, that documentation records that, in that period, the applicant has suffered from (relevantly):
·spondylolisthesis L5/S1; spina bifida occulta L5; L4/5 disc narrowing;
·peptic ulcer;
·gastro-oesophageal reflux disease;
·depression.
The Tribunal has had regard to the whole of that documentation but, for the purpose of making the necessary findings in this matter, it will focus in particular on the medical evidence regarding the applicant’s physical and mental condition as at 2 April 2004.
Mr P Hardcastle
28. Mr Hardcastle (who was not called as a witness) is a consultant orthopaedic surgeon who examined the applicant, at the request of ComSuper, on 11 November 2003. Mr Hardcastle subsequently submitted a report, dated 19 November 2003, regarding his examination of the applicant to ComSuper (T112). In that report Mr Hardcastle diagnosed the applicant’s lower back condition as follows:
“Mr Wall has a congenital anomaly, which has led to a spinal instability syndrome at L5/S1.”
He commented on the applicant’s incapacity as follows:
“Mr Wall has a physical incapacity due to his low back condition,… This would restrict his ability to bend forward and lift weights of more than about 10kg, repetitive bending and pushing and pulling of heavy objects.”
He assessed the extent to which the applicant’s capacity to undertake the belowmentioned kinds of employment had been diminished by his abovementioned low back impairment as follows:
·motor mechanic moderate (30% to less than 60%)
·welder small (10% to less than 30%).
His “overall assessment” of the extent to which the applicant’s capacity to undertake those kinds of employment had been diminished by his low back impairment was 25%.
29. In a subsequent report to ComSuper dated 7 January 2004 (T125), Mr Hardcastle opined that the applicant has “full capacity” to work as a “general clerk”, and he assessed the extent to which the applicant’s capacity to undertake that kind of employment had been diminished by his low back impairment as “minimal, less than 10%”.
30. In a further report to ComSuper dated 22 January 2004 (T130), Mr Hardcastle opined that the applicant’s peptic ulcer is “not related to his spondylolisthesis”. He assessed the extent to which the applicant’s capacity to undertake the belowmentioned kinds of employment had been diminished by his low back impairment as follows:
·radio operator small (10% to less than 30%)
·general clerk minimal (less than 10%)
·motor mechanic moderate (30% to less than 60%)
·welder moderate (30% to less than 60%).
31. In a final report to ComSuper dated 25 January 2004 (T131), Mr Hardcastle confirmed the abovementioned assessment in relation to the “radio operator” kind of employment.
Mr M Alexeeff
32. Mr Alexeeff, Consultant Orthopaedic Surgeon, was called as a witness by the respondent. He said that he has been “in active clinical practice” for about 14 years.
33. Mr Alexeeff confirmed that he had examined the applicant on 24 June 2005 and provided to the respondent’s solicitors a report dated 12 August 2005 regarding that examination. That report was tendered in evidence (Exhibit R5).
34. In his report Mr Alexeeff stated the following diagnosis of the applicant’s low back condition:
“Chronic mechanical low back pain secondary to:
1. L5 spondylolysis
2. Grade 1 L5/S1 spondylolisthesis
3. Degenerative disc disease lumbar spine.”
As regards the appropriate description of the applicant’s low back impairment, Mr Alexeeff commented:
“The correct nomenclature is that of bilateral L5 pars interarticularis defects in association with a Grade 1 L5/S1 spondylolisthesis. The spina bifida occulta appears to be at S1. This is of no clinical significance. It occurs in approximately 10% of the population and is a developmental anomaly. The presence of L4/5 disc space narrowing is indicative of degenerative disc disease at that segment. This finding is part of the natural history of this man’s pathology by nature of findings at L5/S1. The changes at L4/5 have developed over the years because of the last mobile segment effectively moving from the lumbo-sacral junction to the L4/5 segment, due to the presence of his spondylolisthesis and subsequent degenerative change.”
Mr Alexeeff assessed the extent to which the applicant’s capacity to undertake the belowmentioned kinds of employment had been diminished by his low back impairment as follows:
·motor mechanic 80%
·radio operator 30%
·general clerk 20%
·welder 80%
·shooter-trapper 20-40%
·heavy truck driver 80%.
35. In his oral evidence Mr Alexeeff revised his assessment regarding the “shooter-trapper” kind of employment to 60-70%, and he provided an assessment in relation to the “marine engineer” kind of employment of 80%.
36. Asked to make an “overall assessment” of the extent to which the applicant’s capacity to undertake the abovementioned “basket” of employment types had been diminished by his low back impairment, Mr Alexeeff commented on the difficulty of so doing but, nevertheless, he was prepared to make such an assessment of approximately 30%.
Professor J Olynyk
37. Professor Olynyk, Gastroenterologist and Hepatologist, was called as a witness by the respondent. He confirmed that he had examined the applicant on 9 August 2005 and provided 2 reports, dated 9 August 2005 and 1 November 2005, regarding that examination, to the respondent’s solicitors. Those reports were tendered in evidence (Exhibit R3 and Exhibit R4, respectively).
38. In his report of 9 August 2005, Professor Olynyk opined that, as at April 2004, the applicant “had a duodenal ulcer and non-erosive gastro-oesophageal reflux disease”. In his oral evidence, however, Professor Olynyk said that, although there was objective evidence that the applicant had an ulcer in 1988, subsequent investigations, including an endoscopy in 1995, did not show any evidence of duodenal ulcer, and, on that basis, he opined that the applicant “in the past had had an ulcer which had healed”, and he agreed that it was by no means certain that the applicant had an ulcer as at 2 April 2004. He confirmed, however, that the applicant continued to have “ongoing clinical symptoms consistent with the diagnosis of reflux disease” (Transcript, p 127).
39. Professor Olynyk said that it would be reasonable to assume that there was a connection between the applicant’s use of non-steroidal anti-inflammatory medication for his back pain in the 1980s and the ulcer, which he apparently had in the late 1980s. As regards the applicant’s ongoing gastro-oesophageal reflux disease, Professor Olynyk opined that that was probably connected with the applicant’s weight gain rather than his use of anti-inflammatory medication. He further opined that the applicant’s weight gain was probably due to his lack of mobility by reason of his chronic back pain, and in that way there was a significant connection between his back pain and the development of his gastro-oesophageal reflux disease.
40. In his report of 9 August 2005, Professor Olynyk considered the extent to which the applicant’s peptic ulcer and gastro-oesophageal reflux disease diminished his capacity to undertake the following kinds of employment, namely, motor mechanic, radio operator, general clerk, welder, shooter-trapper, heavy truck driver, and marine engineer. In respect of each of those kinds of employment, the relevant diminution in the applicant’s capacity was assessed by Professor Olynyk as “small (10% to less than 30%)”.
Dr O Kay
41. Dr Kay, Psychiatrist, was called as a witness by the applicant. He said that he has been in private practice for about 17 years.
42. Dr Kay said that he has been treating the applicant for major depression since April 2004. He confirmed that he had provided a report dated 28 April 2004 regarding the applicant to the Department of Veterans’ Affairs. The contents of that report (T141) are as follows:
“Mr Wall was referred by Dr Johan Yin, Departmental Medical Officer for a psychiatric assessment in respect of his claim for stress and anxiety. He was also referred by his general practitioner, Dr Yeap, for management of his psychiatric problems.
I examined Mr Wall on 3 occasions, initially on the 1st April 2004 for approximately one hour and subsequently on the 8th & 28th April 2004 for approximately half an hour each.
Mr Wall is a 46 year old, twice married, Department of Veterans’ Affairs 100% disability pensioner on the Totally & Permanently Incapacitated rate.
Mr Wall said that he had been having problems for approximately a decade, but did not like seeing medical practitioners. He was a member of the Regular Army 1984-86 serving in signals intelligence, but was medically discharged largely because of spondylolisthesis.
He told me that –
·he was not functioning at home as a husband,
·he was crying all the time,
·he was unable to sleep, but was unable to take an hypnotic,
·he felt he should be able to pull himself together,
·he had thoughts of suicide.
·He described an increase in his appetite and was ‘eating like a pig’ and,
·he had put on approximately 20kg in 12 months.
He said his general practitioner had previously diagnosed Major Depression and commenced him on Prozac, but, even though his Depression improved significantly, he ceased taking the Prozac after a while because he felt numb and not in contact with the world.
Mr Wall told me that his first marriage ended because of his Depression.
On further questioning, Mr Wall gave an account of significant impairment to his memory and cognition. Previously, he had been studying for a PhD and was capable of reading 2 books per day, but now is incapable of reading the newspaper. Mr Wall put the origin of his Depression down to a consequence of his chronic pain and inability to do things at home.
In my opinion, Mr Wall clearly suffers from a chronic Major Depression characterised by-
·depressed mood for most of the day, every day,
·markedly diminished interest and pleasure in almost all activities,
·increase in appetite,
·insomnia,
·loss of energy,
·feelings of worthlessness,
·impairment to concentration and,
·suicidal ideation.
These symptoms cause him clinically significant distress.
In my opinion, Mr Wall’s Major Depression has arisen as a complication of his chronic pain.
...”
43. In his examination-in-chief Dr Kay was asked what he considered to be the cause of the applicant’s depression, and he responded as follows:
“I thought by far the most likely cause was the chronic pain. I didn’t elicit any history of adverse psycho-social events before he developed his physical problems and he gave about a 10 year history of depression and there is a well recognised association between depression and chronic pain.” (Transcript, p 35)
Dr Kay was also asked to comment on the effect of the applicant’s psychiatric condition on his capacity to undertake clerical work. Dr Kay responded as follows:
“Well, I've already said that he has a significant impairment of his concentration and memory and despite treatment for it that remains grossly impaired at least in comparison to what his previous capacity was, I mean he had previously been studying for a PhD and he said that he was able to digest quite a lot of literature in relation to that PhD and now he is generally incapable of reading very much at all and that is an issue to do with concentration rather than anything else. So there is a cognitive impairment with him that partly may be depression and it may partly also be a reflection of the medication he's on. Because he is not only on medication for his depression, but also for his pain and we know that analgesic medication certainly slows mental functioning...” (Transcript, p 37)
44. In cross-examination Dr Kay agreed that the break-down of the applicant’s marriage in 1995 “could well have been associated with his depression”. He acknowledged that “all sorts of psychological factors would have contributed and still continue to contribute” to the applicant’s depression, but he reiterated that, in his opinion, the “major cause” of the applicant’s depression is his chronic pain.
Dr P McCarthy
45. Dr McCarthy, Consultant Psychiatrist, was called as a witness by the respondent. He said that he has been practising as a psychiatrist for 14 years.
46. Dr McCarthy confirmed that he saw the applicant twice – on 21 June 2005 and 14 July 2005 – and provided a report dated 16 September 2005 regarding the applicant to the respondent’s solicitors. Dr McCarthy’s report was tendered in evidence (Exhibit R1).
47. In his report of 16 September 2005 Dr McCarthy comprehensively set out the applicant’s history and expressed the following opinion:
“Opinion
xxi.This man gives a history of chronic pain and a variety of symptomatic medical problems since 1985. He has described back pain, symptomatic neurological problems including numbness and a left hemi-anaesthesia. He has also complained of hearing loss and tinnitus and a variety of gastro-intestinal symptoms, which continue to the present. His second wife has known him for 12 years and says he has been depressed all the time she has known him. There is medical documentation of a degree of depression in 1987 and also in 1995 when he separated from his first wife. His depression was sufficiently severe for him to be suicidal at the time of his marital separation and his general practitioner suggested he suffered from Mania although in retrospect I suspect that episode is likely to have been anxiety and agitation associated with his depression and there is no good history of Bipolar Affective Disorder. His depression, in more recent years, has become associated with Panic Attacks, marked anxiety and probable Agoraphobia. He has received psychiatric treatment with medication, which has stabilised and probably improved his Mood Disorder and anxiety somewhat...
To answer your specific questions:-
1.As at April 2004, do you consider the applicant suffered from major depression? If so, as at 2 April 2004:
a. what was the nature of the major depression?
As of 2nd April 2004 I believe this gentleman did suffer from a Major Depressive Disorder characterised by persistent depression for greater than two weeks associated with sleep disturbance, a degree of hypersomnia, weight gain, loss of energy, some suicidal thoughts and claimed feelings of worthlessness and impaired cognition. I believe it is likely that in April 2004 he was suffering from a Panic Disorder with Agoraphobia as well as depression.
As of 2nd April 2004 his depression was characterised by persistent sadness with the above described symptoms as well as and (sic) notable degree of agitation.
b. what were the causes of the major depression?
The causes of his Depressive Disorder have, I believe, varied at different times of his life. In 1987 it is likely his depression was attributable to his pain, illness affecting his children and his discharge from the army and loss of his trade. His depression, at that stage, does not appear to have been as severe as in more recent years. It is likely that in 1995 his depression was predominantly attributable to the separation from his wife and illness affecting his father. The history I received is somewhat contradictory as he initially told me his father had died much earlier than this. In April 2004 his depression is likely to have been mainly attributable to frustration over his case and I note that he was referred to see a psychiatrist either by his general practitioner and/or the Department of Veterans’ Affairs after he became distressed and angry during a hearing over his claims. Other contributions to his depression at the time are likely to have been issues to do with his ex-wife who attempted suicide later that year.
The major cause of his depression however in April 2004 is likely to be frustration over his legal case and some domestic difficulties including his wife’s frustration and perhaps some marital disagreements concerning his behaviour and functioning at home while she is at work. He has received treatment since then and his current mood symptoms are, I believe, predominantly attributable to his continuing frustration over his case and the cessation of medication over the last three months. To the extent that he is suffering from chronic pain and disability that may also contribute to his mood although the predominant cause I believe in April 2004 was frustration over his case.
...
d.was the applicant’s major depression causally connected with the retirement impairment, ‘bilateral spondylolisthesis L5/S1; spina bifida occulta L5; L4/5 disc narrowing’? That is, was it an effect or consequence of ‘bilateral spondylolisthesis L5/S1; spina bifida occulta L5; L4/5 disc narrowing’?
To the extent that he is suffering chronic pain from his described condition that may also be said to be contributing somewhat to his Major Depression although I do not believe it is reasonable to conclude that his depression is causally connected with his retirement impairment and I doubt that his pain and various other medical conditions are now, of themselves, significantly contributing to his depression. I believe personality phenomena and relationship issues and possibly some organic contribution from his mild small vessel disease may have contributed significantly to his depression and I doubt that this far down the track his claimed back pain, of itself, is a significant contribution to his mood disorder.
...”
48. In his report of 16 September 2005 Dr McCarthy also provided an assessment of the extent to which the applicant’s major depression would have diminished his capacity to undertake specified kinds of employment, as at 2 April 2004. His assessment was as follows:
“a.Motor mechanic, large i.e. greater than 60% mainly to do with his impaired cognition, tolerance of frustration;
b.Radio operator, large i.e. greater than 60% for the same reason;
c.General clerk, large i.e. greater than 60% because of his concentration, reliability, relating to others;
d.Welder, large i.e. greater than 60% for the same reasons;
e.Shooter trapper, total 100%, mainly due to the danger of cognitive loss and poor concentration with someone using a firearm;
f.Heavy truck driver, large i.e. total 100% mainly due to the danger and consequence of an accident due to cognitive impairment; and
g.Marine engineer, large i.e. greater than 60% for the same reasons.”
49. In his oral evidence Dr McCarthy reiterated the abovementioned views expressed in his report.
Analysis and Findings
50. The task of the Tribunal in this matter is to determine, as at 2 April 2004, the “percentage of incapacity in relation to civil employment”, and the appropriate classification in respect of incapacity, of the applicant, within the meaning, and for the purposes, of ss 30 and 34 of the Act. The Tribunal now turns to the particular matters in respect of which findings must be made in order to make that determination.
What was the physical or mental incapacity by reason of which the applicant was retired from the Australian Defence Force (Army) on 3 June 1986?
51. It is common ground that the applicant was retired from the Australian Defence Force (Army) on 3 June 1986 by reason of chronic low back pain which rendered him physically incapable of performing his service duties and unfit for further service, and the Tribunal so finds.
What was the physical impairment of the applicant that was the cause of the abovementioned physical incapacity by reason of which he was retired from the Australian Defence Force (Army) on 3 June 1986?
52. On the basis of the whole of the medical evidence – in particular, the report of Mr J Kagi, Orthopaedic Surgeon, dated 23 June 1987 (T70), and the report of Mr M Alexeeff, Consultant Orthopaedic Surgeon, dated 12 August 2005 (Exhibit R5) – the Tribunal finds that, for the purposes of s 34(1B)(a) of the Act, the physical impairment of the applicant that was the cause of the abovementioned physical incapacity by reason of which he was retired form the Australian Defence Force (Army) on 3 June 1986 is most appropriately described as “grade 1 spondylolitic spondylolisthesis of L5 on S1, and intervertebral disc narrowing at L4/5, of the lumbar spine” (“retirement impairment”).
Was the applicant, as at 2 April 2004, suffering from any other physical or mental impairment which was causally connected with his retirement impairment?
53. The applicant claims that, as at 2 April 2004, he was suffering from (relevantly) 2 physical impairments – namely, peptic ulcer and gastro-oesophageal reflux disease – which are causally connected with his retirement impairment.
54. The Tribunal, on the basis of the whole of the medical evidence – in particular, the report of Professor Olynyk, Gastroenterologist and Hepatologist, dated 9 August 2005 and his oral evidence – finds that:
· the applicant was not suffering from peptic ulcer as at 2 April 2004;
· the applicant was suffering from gastro-oesophageal reflux disease as at 2 April 2004.
55. As regards the applicant’s gastro-oesophageal reflux disease, the Tribunal is satisfied, having regard in particular to the oral evidence of Professor Olynyk, that, on the balance of probabilities, that condition is causally connected with the applicant’s weight gain which in turn is causally connected with his lack of mobility by reason of his chronic back pain resulting from his retirement impairment. Accordingly, the Tribunal finds that the applicant’s gastro-oesophageal reflux disease is causally connected with his retirement impairment.
56. The applicant claims that, as at 2 April 2004, he was also suffering from a mental impairment – namely, major depression – which is causally connected to his retirement impairment.
57. The 2 psychiatrists who gave oral evidence and whose reports were before the Tribunal – namely, Dr Kay and Dr McCarthy – both opined that, as at 2 April 2004, the applicant was suffering from chronic major depression. Accordingly, on the basis of that evidence, the Tribunal finds that, as at 2 April 2004, the applicant was suffering from chronic major depression.
58. As regards the question whether the applicant’s chronic major depression is causally connected with his retirement impairment, however, Dr Kay and Dr McCarthy were not in full agreement. Dr Kay opined unequivocally that the major, or most likely, cause of the applicant’s chronic major depression was his chronic low back pain which he suffered by reason of his retirement impairment. Dr McCarthy, on the other hand, agreed that the applicant had been suffering form ongoing depression since at least 1987 but he opined that the causes of that depression varied at different times during the period from 1987 to April 2004. More specifically, he opined that:
· in 1987 it is likely that his depression was attributable to his pain, illness affecting his children, and his discharge from the Army and the loss of his trade;
· in 1995 it is likely that his depression was “predominantly attributable” to the separation from his wife;
· in April 2004 his depression is likely to have been “mainly attributable” to frustration over the case between himself and the respondent.
The Tribunal accepts – as, indeed, did Dr Kay – that, at different times throughout the period from 1987 to April 2004, various life experiences (including those specified by Dr McCarthy) operated as factors contributing to the severity of the applicant’s chronic depression. On the basis of the applicant’s evidence, however, the Tribunal accepts that the single factor which has constantly contributed to the severity of his chronic depression throughout that period has been the chronic low back pain which he has suffered by reason of his retirement impairment. The Tribunal accepts that at certain times other factors may have contributed to his depression to a greater extent than his chronic low back pain – for example, the break-down of his marriage and his separation from his children in mid-1995 – but, in the Tribunal’s opinion, his chronic low back pain was the original cause of his contracting depression in or about 1987 and thereafter continued, and presently continues, to be an operating cause of his chronic major depression. Accordingly, the Tribunal finds that the applicant’s chronic major depression is causally connected with his retirement impairment.
Finding
59. The Tribunal finds, therefore, that the applicant’s gastro-oesophageal reflux disease and chronic major depression are impairments which are causally connected with his retirement impairment, within the meaning of s 34(1B)(b) of the Act.
The “prescribed physical or mental impairment”
60. Accordingly, the Tribunal finds that, for the purposes of s 34(1A)(c) of the Act, the “prescribed physical or mental impairment” (as defined in s 34(1B) of the Act) in relation to the applicant, comprises:
· grade 1 spondylolitic spondylolisthesis of L5 on S1, and intervertebral disc narrowing at L4/5, of the lumbar spine;
· gastro-oesophageal reflux disease; and
· chronic major depression.
What are the “vocational, trade and professional skills, qualifications and experience” of the applicant?
61. On the basis of an Information Statement dated 8 April 1986 (T24) provided by the applicant, and the applicant’s oral evidence, the Tribunal is satisfied, and finds, that, for the purposes of s 34(1A)(a) of the Act, the applicant’s “vocational, trade and professional skills, qualifications and experience” comprise:
Pre-enlistment
·1974 - 1977 – he completed a 4-year motor mechanic apprenticeship and was awarded a Certificate of Trade Studies (Automotive Mechanical) and a Western Australian Industrial Commission Final Certificate;
·1978 – he was employed as a motor mechanic;
·January - June 1979 – he was employed as a marine engineer (see paragraph 15 above);
·June 1979 - June 1980 – he was employed as a motor mechanic;
·June 1980 - December 1980 – he was employed as a mechanic/manager;
·December 1980 - December 1981 – he was employed as a welder;
·December 1981 - April 1982 – he was employed as a foreman welder;
·April 1982 - October 1984 – he was employed as a motor mechanic;
During Army service
· October 1984 - January 1985 – he completed recruit training;
· January 1985 - April 1985 – he performed general duties;
· April 1985 - April 1986 – he completed the ECN 273 Operator Signals IET Course and gained the trade qualification of Operator Signals;
Post discharge
· 1989 - 1994 – he completed a Bachelor of Arts degree course (part-time) at Murdoch University, graduating with First Class honours in Military History;
· he subsequently commenced research (part-time) for a thesis on the topic of the history of veterans’ welfare for the PhD degree but discontinued in or about 1999.
What are the kinds of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake?
62. In addressing this issue the Tribunal will focus on those kinds of civil employment which have been specified by the parties in presenting their respective cases.
Motor mechanic
63. It is common ground that a person with the applicant’s skills, qualifications and experience might reasonably undertake civil employment as a motor mechanic, and the Tribunal so finds.
Welder
64. Having regard to the applicant’s skills and qualifications and his substantial pre-enlistment employment experience as a welder, the Tribunal is satisfied, and finds, that a person with those skills, qualifications and experience might reasonably undertake civil employment as a welder.
Marine engineer
65. Having regard to the applicant’s skills and qualifications and his pre-enlistment employment experience as a marine engineer (as outlined in his Resumé set out in paragraph 16 above), the Tribunal is satisfied, and finds, that a person with those skills, qualifications and experience might reasonably undertake civil employment as a marine engineer.
Heavy truck driver
66. Although the applicant, according to his evidence, was required to drive trucks and tow trucks in the course of certain pre-enlistment employments as a motor mechanic or welder, and he held, and continues to hold, a licence to drive heavy vehicles (other than road trains), he has never been employed as a truck driver or in a position in which truck driving was the major duty. In those circumstances, the Tribunal is not satisfied that civil employment as a heavy truck driver is a kind of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake.
Shooter-trapper
67. The Tribunal is not satisfied, on the basis of the evidence before it, that civil employment as a shooter-trapper is a kind of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake.
Radio operator
68. Although the applicant was trained, and became qualified, as an Operator Signals during his Army service, he has had no training, and is not qualified, as a radio operator. According to his evidence, his training and experience as an Operator Signals did not include making or receiving voice transmissions by radio. In those circumstances, the Tribunal is not satisfied that civil employment as a radio operator is a kind of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake.
Operator Signals
69. Having regard to the applicant’s abovementioned skills, qualifications and experience as an Operator Signals, which he acquired during his Army service, the Tribunal is satisfied, and finds, that a person with those skills, qualifications and experience might reasonably undertake civil employment as an Operator Signals (assuming that that kind of employment is available in civil employment).
General clerk
70. As indicated in paragraph 61 above:
· in the period 1974-1984 before the applicant enlisted in the Army, he acquired trade skills, qualifications and experience in various physically-demanding kinds of employment, namely, motor mechanic, welder and marine engineer, and he did not have any experience in employment of a general clerical or sedentary kind;
· in the period from April 1985 to April 1986, during his Army service, he acquired additional trade skills, qualifications and experience in completing the Operator Signals course – skills and experience which included typing skills and experience in a sedentary kind of occupation, although one which involved duties of a very specialised nature (namely, Morse code reception) rather than general clerical duties;
· in the period 1989-1999 after his discharge from the Army, he completed a Bachelor of Arts degree course (part-time) graduating with First Class Honours in Military History, and then commenced research (part-time) for a PhD thesis on the topic of the history of veterans’ welfare, which he discontinued after approximately 4 years.
71. In the Tribunal’s opinion, having regard to the applicant’s entire employment history and his tertiary studies after being discharged from the Army, the question whether civil employment as a general clerk is a kind of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake is problematic. On the one hand, the applicant’s entire employment history did not include any training or experience in general clerical duties or in sedentary work of a similar kind. On the other hand, however, the applicant has, since his discharge from the Army, successfully completed a course of tertiary study leading to a BA degree with First Class Honours in Military History, followed by approximately four years of part-time postgraduate research on the topic of the history of veterans’ welfare, thereby arguably demonstrating an aptitude for general clerical, or similar sedentary, employment.
72. In the Tribunal’s opinion, civil employment as a general clerk, or sedentary employment of a similar kind, is not appropriate or suitable civil employment for a person with the whole of the applicant’s skills, qualifications and experience. The suitability or appropriateness of kinds of civil employment, however, is not the test to be applied for the purposes of ss 30 and 34 of the Act. The correct test is whether the civil employment is of a kind which a person with the applicant’s skills, qualifications and experience “might reasonably undertake”. Having regard to the applicant’s tertiary qualification and experience, it cannot reasonably be said, in the Tribunal’s opinion, that a person with that qualification and experience and the necessarily related skills might not reasonably undertake civil employment as a general clerk or sedentary employment of a similar kind. Accordingly, the Tribunal is satisfied, and finds, that a person with the applicant’s skills, qualifications and experience might reasonably undertake civil employment as a general clerk.
Finding
73. The Tribunal finds, therefore, that the kinds of civil employment which a person with the applicant’s skills, qualifications and experience might reasonably undertake are:
·motor mechanic;
·welder;
·marine engineer;
·“operator signals”; and
·general clerk.
To what degree (if at all) have the applicant’s “prescribed physical or mental impairments” – that is, his retirement impairment and the impairments causally connected therewith – diminished his capacity to undertake the kinds of civil employment specified in paragraph 73 above?
74. In addressing this issue the Tribunal will consider the degree to which each of the applicant’s relevant impairments has diminished his capacity to undertake each of the relevant kinds of civil employment, and then make an overall, or global, assessment of the degree to which his relevant impairments have diminished his capacity to undertake the relevant kinds of civil employment.
The applicant’s retirement impairment
75. In assessing the degree to which the applicant’s retirement impairment – namely, grade 1 spondylolitic spondylolisthesis of L5 on S1, and intervertebral disc narrowing at L4/5, of the lumbar spine – has diminished his capacity to undertake each of the relevant kinds of civil employment, the Tribunal accepts the evidence of Mr Alexeeff (see paragraphs 34-35 above). On the basis of that evidence the Tribunal finds that the degree to which the applicant’s retirement impairment has diminished his capacity to undertake each of the relevant kinds of civil employment is as follows:
· motor mechanic 80%
· welder 80%
· marine engineer 80%
· “operator signals” 30%
· general clerk 20%.
The applicant’s gastro-oesophageal reflux disease
76. In assessing the degree to which the applicant’s gastro-oesophageal reflux disease has diminished his capacity to undertake each of the relevant kinds of civil employment, the Tribunal accepts the evidence of Professor Olynyk (see paragraph 40 above). On the basis of that evidence the Tribunal finds that the degree to which the applicant’s gastro-oesophageal reflux disease has diminished his capacity to undertake each of the relevant kinds of civil employment is as follows:
· motor mechanic small (10%-29%)
· welder small (10%-29%)
· marine engineer small (10%-29%)
· “operator signals” small (10%-29%)
· general clerk small (10%-29%).
The applicant’s chronic major depression
77. In assessing the degree to which the applicant’s chronic major depression has diminished his capacity to undertake each of the relevant kinds of civil employment, the Tribunal accepts the evidence of Dr McCarthy (see paragraph 48 above) and Dr Kay (see paragraph 43 above). On the basis of that evidence the Tribunal finds that the degree to which the applicant’s chronic major depression has diminished his capacity to undertake each of the relevant kinds of civil employment is as follows:
· motor mechanic large (greater than 60%)
· welder large (greater than 60%)
· marine engineer large (greater than 60%)
· “operator signals” large (greater than 60%)
· general clerk large (greater than 60%).
Finding
78. Having regard to the abovementioned findings regarding the degree to which each of the applicant’s relevant impairments has diminished his capacity to undertake each of the relevant kinds of civil employment, the Tribunal finds that the degree to which the applicant’s relevant impairments have, together or in combination, diminished his capacity to undertake each of the relevant kinds of civil employment is as follows:
· motor mechanic 80%
· welder 80%
· marine engineer 80%
· “operator signals” greater than 60%
· general clerk greater than 60%.
What is the “percentage of incapacity in relation to civil employment”, and the appropriate classification in respect of incapacity, of the applicant?
79. Having regard to the abovementioned findings, the Tribunal finds that the “percentage of incapacity in relation to civil employment” of the applicant, for the purposes of s 34(1) of the Act, is greater than 60%. It follows that the appropriate classification in respect of incapacity of the applicant, in accordance with s 30(1) of the Act, is Class A, and the Tribunal so finds.
Decision
80. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the appropriate classification in respect of incapacity of the applicant, in accordance with s 30(1) of the Act, is Class A.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member
Signed: ...........[Sgd S da Motta]..............................
AssociateDates of Hearing 12, 13 July 2006
Date of Decision 10 November 2006
Representative of the Applicant Mr J Dalton
Counsel for the Respondent Mr A Dillon
Solicitor for the Respondent Australian Government Solicitor
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