Wiley v Board of Trustees, State Public Sector Superannuation Scheme

[1997] QSC 46

IN THE SUPREME COURT

OF QUEENSLAND

No 2327 of 1996

Brisbane

Before the Hon. Justice White

[Wiley v. The Board of Trustees, State Public Sector Superannuation Scheme]

BETWEEN:    

ROYCE ANDREW WILEY

Applicant

AND:

THE BOARD OF TRUSTEES, STATE PUBLIC
  SECTOR SUPERANNUATION SCHEME

Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered  03/04/97

CATCHWORDS:     JUDICIAL REVIEW - decision of superannuation board - "total and permanent disablement" - "unlikely ever to be able to work again ... reasonably qualified by education training and experience".

Counsel:Mr R Lynch for the applicant

Mr M Hinson for the respondent

Solicitors:CA Sciacca & Associates for the applicant

Crown Solicitor for the respondent

Hearing date:               7 February 1997

IN THE SUPREME COURT

OF QUEENSLAND

Appeal No 2327 of 1996

Brisbane

[Wiley v. The Board of Trustees, State Public Sector Superannuation Scheme]

BETWEEN:    

ROYCE ANDREW WILEY

Applicant

AND:

THE BOARD OF TRUSTEES, STATE PUBLIC
  SECTOR SUPERANNUATION SCHEME

Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered  03/04/97

The applicant, a former employee of the Department of Primary Industries, has applied for review of the decision of the respondent Board of Trustees of the State Public Sector Superannuation Scheme ("the Board") undated but conveyed to the applicant under cover of letter dated 22 February 1996 that he be categorised as "permanently and partially disabled" within the meaning of the Deed of the State Public Sector Superannuation Scheme ("the Deed") established pursuant to the Superannuation (State Public Sector) Act 1990 ("the Act"). The applicant, a member of the scheme, has claimed that he is totally and permanently disabled within the meaning of the Deed and thereby entitled to the scheme benefits provided for such disablement.
           The applicant claims that the Board erred in the sense provided for in ss.20(2)(e) and (f) of the Judicial Review Act 1991 in reaching its decision.
The Act
           The Act is entitled "An Act to provide the machinery for the establishment of a new superannuation scheme for the State public sector and for related purposes".  By s.2 "'scheme' means the scheme for the provision of superannuation, retirement, provident or other benefits established pursuant to the deed in accordance with this Act".  The Board of Trustees constituted in accordance with the Superannuation (Government and Other Employees) Act 1988 is by s.3 of the Act to be the Board of Trustees for the purposes of the Act. By s.4 of the Superannuation (Government and Other Employees) Act the Board is a body corporate.  Its membership consists of its chief executive, three persons appointed by the Governor in Council as representatives of the Government and four persons appointed by the Governor in Council as representatives of the industrial unions of employees whose members are persons who upon retirement might become entitled to benefits from the scheme.
Part 3 of the Act establishes a fund known as the State Public Sector Superannuation Fund and a scheme established by a deed for the provision of superannuation, retirement, provident or other similar benefits payable from the fund. The powers of the Board and the exercise of discretion by the Board are, in the main, to be set out in the deed, s.7. The membership of the scheme is open to any person or member of a class of persons who is an employee of or engaged by a unit of the State public sector, s.13. Whilst s.14 of the Act indicates the subject matter which may be contained in the deed it is the deed itself which provides the definition sections which are applicable to the decision made in respect of this applicant.
The Deed
           Clause 1.4 of the Deed defines:

"disablement" to be "any mental or bodily injury, illness, disease or infirmity";

"permanent and partial disablement" to be "disablement of a degree which in the opinion of the Board is such as to render the member permanently unfit to discharge or incapable of discharging the duties of the member's office efficiently, but is not total and permanent disablement";

"total and permanent disablement" to be "disablement of a degree which, in the opinion of the Board after obtaining the advice of not fewer than two medical practitioners, is such as to render the member unlikely ever to be able to work again in a job for which the member is reasonably qualified by education, training or experience".

The Board found the applicant to be permanently and partially disabled but not totally and permanently disabled.  It decided that he was unfit to discharge the duties of his office as a farm labourer efficiently but not so disabled as to render him unlikely ever to be able to work again in a job for which he was reasonably qualified by education, training or experience.
Background
           The circumstances of the applicant's disablement are taken from the medical reports which were before the Board.  The applicant was born on the 14 March 1960 and is thus now aged 37 years.  The applicant is a registered primary producer and lives with his wife on a small farm on which cattle are raised.  The farm made a loss in the 1994 year.  The applicant left school at 17 years of age and completed an apprenticeship as a carpenter.  He has never performed regular work in this trade but has performed predominantly farm work throughout his life.  He was employed as a farm hand for 10 years by the CSIRO and for 7 years as a farm labourer for the Department of Primary Industries.  His duties as a farm labourer involved much equipment use such as operating a tractor and a front end loader and included hay making, lifting heavy feed bags and operating farm plant and equipment over rough ground.
           The applicant had been a patient of the East Clinic at Ipswich since 1978.  Dr P Goldston, the applicant's general practitioner at the clinic, noted that the first significant mention of a back problem by the applicant occurred in May 1993 when he had 3 days off work for low back strain.
           The precipitating incident for the applicant's current disablement occurred on 25 August 1994.  He was attempting to lift an industrial waste bin which tipped forward catching him in a flexed position against a wall.  The applicant struggled out from under a load of infected waste and experienced pain across his lower back with pain radiating to his left and right buttocks and feet.  He saw his general practitioner the following day and received physiotherapy and traction over two weeks.  He was off work for two months and participated in a Workers' Compensation Board rehabilitation program.  He was unable to complete more than 1 day of a work assessment program.  His Workers' Compensation claim was finalised in March 1995.  The applicant was referred to Dr PW Brazel, orthopaedic surgeon, in October 1994 in respect of his low back disability. 
           The applicant described constant low back pain with sciatica extending to the sole of his left foot present everyday and aggravated by bending.  He indicated a comfortable sitting tolerance of 20 minutes and a comfortable standing tolerance of 10 minutes.  He was able to walk on a flat ground at a slow pace and avoided all lifting.  He assisted with light housework but did no farm work other than opening and closing gates.  The farm work was attended to by his wife.  The applicant was able to drive a motor vehicle for approximately 20 minutes comfortably.  He played no regular sport and had no active hobbies and was described as being overweight and unfit.
           The Department of Primary Industries requested that the Office of the State Public Sector Superannuation Fund consider the applicant's entitlement to a sickness retirement benefit.  Reports were provided from two orthopaedic surgeons, Dr P Brazel and Dr P Boys and from Dr Goldston his general practitioner.  On 10 August 1995 the Secretariat determined that the applicant be characterised as having "permanent and partial disablement" within the meaning of cl.1.4 of the Deed.  The applicant appealed against that determination providing a further report from Dr Brazel and a report from Dr G Gillett an orthopaedic surgeon.
           The Board reviewed the matter on 15 November 1995 but deferred decision pending consideration of a report which it sought from Dr J Olsen, a consultant occupational physician and engineer.  Dr Olsen's report was considered by the trustees on 17 January 1996.  He indicated that he required radiological material.  The results of plain x-rays and a CT scan were forwarded to him for further opinion.  The applicant's solicitors provided a further report from Dr Gillett dated 11 January 1996 and Dr Olsen provided a further report dated 30 January 1996.
The Material Before the Board
           The relevant material considered by the Board were two reports from Dr PW Brazel dated 5 April 1995 and 5 September 1995; a report from Dr PL Goldston dated 2 June 1995; a report from Dr P Boys dated 19 June 1995; two reports from Dr G Gillett dated 27 September 1995 and 11 January 1996; two reports from Dr J Olsen dated 30 November 1995 and 30 January 1996; and the letter of appeal from the applicant's solicitors dated 18 October 1995.
           Mr R Lynch for the applicant tendered a letter to the applicant from the Department of Primary Industries dated 29 August 1995 in order to put in evidence the following passage:

"As you would be aware from discussions with Ray Pople, there are no suitable vacancies in APG or other business groups appropriate to your skills and experience."

That document was not before the Board when its decision under review was made.  It is not relevant to this application.
           It is convenient to summarise the medical reports before considering the Board's decision.

1. Doctor P Brazel

   Dr Brazel was the treating specialist for the applicant.  In October 1994 he noted that sitting was the most troublesome aspect of the applicant's disability and, despite physiotherapy, his symptomatology had slowly increased.  On clinical examination Dr Brazel noted that the applicant had a "grossed reduction of forward flexion in his lumber spine.  Extension was incomplete and painful."  He reviewed the applicant several times noting that his symptoms were significantly aggravated by heavy manual labour.  He considered that heavy lifting, twisting and prolonged bending would preclude him from manual work.  He noted that the applicant had difficulty sitting and therefore a sedentary occupation would also prove difficult.  He considered his prognosis for rehabilitation was very poor and his incapacity such that his low back pain prevented him from carrying out his duties as a farm hand.  He considered that the applicant's incapacity was permanent and recommended that he retire on grounds of ill health related to his lumber spine trouble.
              He added:

   "I believe Mr Wiley probably is able to undertake employment outside his current employment authority, however he would have to be either self employed, or have a very understanding employer who will allow him to mobilise after sitting for short periods of time".

Dr Brazel reported to the Department of Primary Industries on the 5 September 1995 that the applicant had ongoing symptoms in his low back and noted that despite a rehabilitation program this had persisted.  On clinical examination the applicant stood with a flexed attitude and could only forward flex to the level of mid thigh.  Extension was incomplete and painful.  He noted, however, that there was straight leg raising to 80°.  In his opinion the applicant had ongoing significant symptoms in his lumbar spine as a result of multi-level discogenic low back pain and he now considered that a permanent total disability had resulted from the applicant's condition and that no further intervention would assist.

1. Dr PL Goldston

   Dr Goldston noted on 2 June 1995 that when he first saw the applicant in August 1994 he walked in a "hunched over" fashion and continued to do so despite extensive and intensive physiotherapy.  His conclusion was that the applicant's prognosis was poor particularly in his then current employment and that the applicant was left with permanent disablement in terms of mobility, movement and strength and had no chance of returning to his former duties.  He added:

   "I would regard Mr Wiley as unemployable either within or outside his current employing authority".

In his opinion the applicant was totally and permanently disabled pursuant to the definition in the Deed.

1. Dr P Boys

   Dr Boys examined the applicant on 19 June 1995.  He noted that the applicant could flex forwards to touch his knees but could do straight leg raising to 70° on the left and 90° on the right.
              Plain x-rays showed narrowing of the L5-S1 disc spaces.  Dr Boys concluded:

   "1.This man suffers a mechanical low back pain which appears discogenic in nature reflecting internal derangement of the L5-S1 intervertebral disc.

2.It is likely that Mr Wiley will experience slow resolution of sciatic symptoms; activity related low back pain is likely however to be persistent.

3.I believe that this man will be unfit to pursue the heavier tasks required of a farm hand.  I believe activity such as heavy lifting of feed bags and the operation of farm plant and tractors over rough ground are beyond his physical capacity.

4.As stated previously, some improvement could be anticipated.  It is likely that he will manifest improvement of symptoms and function over the next 12 months.  I would suggest possible review in June of 1996.

5.I do not believe that there are current medical grounds for retirement on the grounds of ill-health.

6.I believe this man would be capable of undertaking alternative sedentary employment restricting bending and lifting activities.

7.I have perused the definitions of disablement provided and I believe this man satisfies the definition of a permanent and partial disablement.

...

9.I note this man's trade qualifications as a carpenter.  I note his extensive experience as a farm worker.  I believe that he would be capable of performing sedentary or office based duties within the Department of Primary Industries.  He would similarly be capable of working in a farm environment in a supervisory capacity with restrictions placed upon all bending and lifting activities.  I believe that he would be comfortable operating a motor vehicle but operation of farm equipment would not be advised."

1. Dr G Gillett

   In his report of 27 September 1995, Dr Gillett wrote that having perused the definitions in the Deed based on the applicant's current situation "he definitely fits into the permanent partial disablement category and in my view he would fit into the definition of total and permanent disablement" and added:

   "I don't believe he will in the long term be able to work in the job which the member is reasonably qualified by education, training or experience.  That is I don't believe he will be able to do the type of farm work or carpentry work he has done in the past.  One argument in relation to this would be that the natural history of degenerative conditions of the spine is it will improve but in the timeframe for this to occur is long and it is more likely that if it did improve he would be an old man beyond his normal working capacity.  If it did improve I do not believe it would allow him to work in the type of work he did in the past."

In his letter of 11 January 1996 he stated:

"It is my view it is more likely that your client will never improve to a sufficient level to allow him to work in any of the fields of work in which he has gained experience in the past."

1. Dr J Olsen

   Dr Olsen did not examine the applicant.  He was provided with the medical reports, the letter from the applicant's solicitor and, for his second opinion of 30 January 1996 the x‑rays and their reports.  Dr Olsen summarised the medical reports which had been provided to him and noted:

   "The medical file is very brief indeed and it would be difficult to reach a definite conclusion as to the extent of underlying spinal impairment and also the extent to which such impairment may influence the functional capacity of Mr Wiley".

He noted some discrepancies in the clinical reporting particularly the "excellent" straight leg raising such as reported by Drs Brazel and Boys which was not consistent with  severe disc injury or indeed a disc injury that led to stooped posture with almost no spinal movement.  He agreed with Dr Boys that sciatica is disabling and may prevent a return to work in the immediate to medium future, but although general spinal degeneration was "irritating" it would not generally prevent a person from resuming employment.  He considered activity particularly working actively the best treatment for the symptoms.  He considered that the radiology did not provide any insight as to the cause of the back pain of which the applicant complained and "overall the radiological findings are not consistent with a severe or a disabling disorder of the lumbo sacral spine."  He thought the applicant permanently and partially disabled "to a minor degree".
           In his second report he added:

"On medical grounds it would not be indicated to retire this man and indeed it would be shameful to consider him an invalid and totally unable to work in any capacity.

Mr Wiley in my opinion would be a suitable candidate for occupational rehabilitation and referral to a rehabilitation provider.  There would be good prospects for a return to work".

He accepted that "on the balance of probabilities" the applicant was permanently and partially disabled according to the definition in the Deed, but that since the problem was primarily degenerative in nature "it would be inappropriate to consider him totally and permanently disabled".  Dr Olsen noted that the applicant was not highly educated but was a qualified carpenter and had worked as a farm labourer for many years.  He stated:

"In my opinion there are employment options and if referred to a rehabilitation provider I would expect that there would be some options available to him for a return to work.

There are many jobs that do not require education, training or for that matter any great deal of experience.  He does however have some training and qualification and also some experience.  The type of work that may prove suitable for him would be retail sales, stores work, and possibly driving.  I cannot be adamant or specific with regards to suitable work, the medical file simply does not afford the degree of comprehensive assessment that would be required to express such an opinion."

The Board's Decision and Reasons
           The Board set out the chronological background to it being seized of the matter, the relevant definitions, the material it had regard to and correctly identified the issue for decision as being the appropriate level of disablement, total or partial, for benefit based on the proper interpretation of the trust deed and evidence.  The Board set out the main conclusions in the various medical reports to which I have referred more fully above.  Its decision and reasons were as follows:

"It is the determination of the Board of Trustees of the State Public Sector Superannuation Fund, that on review of the evidence, we support the Secretariat's decision that Mr Wiley is permanently and partially disabled in terms of the Deed.

Material findings are:

•Mr Wiley is unlikely ever to able to work again as a Farm Hand.

•Dr Boys, Dr Gillett and Dr Olsen indicate that an improvement in the state of the condition can be expected.

•We consider that Mr Wiley will be capable of working in the future in alternative occupations for which he is reasonably qualified."

The Grounds of Review
           The grounds of review on based on s.20(2)(e) are that the Board took an irrelevant consideration into account, failed to take relevant considerations into account and its exercise of power was so unreasonable that no reasonable person could so exercise the power.  Mr Lynch sought leave, which was not opposed, to add the further ground that the decision involved an error of law pursuant s.20(2)(f).  The irrelevant consideration lay in overstating the applicant's prospect for improvement when this was not supported by the medical evidence.  The relevant considerations not taken into account were the applicant's limited education training or experience which was insufficient for any work of the kind that the medical evidence suggested he was physical capable of carrying out.  It is submitted to be unreasonable of the Board rejecting the opinion of the applicant's general practitioner and treating orthopaedic specialist whilst accepting the opinion of Dr Olsen who had not examined the applicant and that of Dr Boys.

           The error of law identified was the Board's failure to give effect the true meaning of the definition of "total and permanent disablement" in cl.1.4 of the deed and in particular failed to have any or any proper regard to the words "is reasonably qualified".
Approach
           As is well established it is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which has been vested in the administrator.  The role for the court is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned, Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at p.228, Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1985-6) 162 CLR 24 per Mason J at p.40, Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 185 CLR 259.
The Deed provides that it is the Board's opinion which is determinative of a member's entitlements. It may be inferred that there is potential for conflict between the Board as Trustee of the fund (s.11(2) of the Act) and the member. This potential for conflict has been referred to in a number of insurance cases, Edwards v. Hunter Valley Co-op Co Dairy Ltd (1992) 7 ANZ Insurance Cases 77,531; De Britt v. Frew ibid 77,716; and Ivkovic v. Australian Casualty & Life Limited (1994) 10 SR (WA) 325. Consistently with all decision makers the Board has a duty to act reasonably, and in good faith and to deal fairly with the member. Whilst this may be no more than a statement of the obligations imposed on all decision makers, where the obligation of fidelity exists the subjective opinion needs to be carefully scrutinised.
           It was for the applicant to satisfy the Board that he was entitled to benefits commensurate with a categorisation of "total and permanent disablement".
Error of law
           It is convenient to dispose of the construction of the definition at the outset.  The Deed does not state with what degree of unlikelihood the Board must be satisfied that the member will be unable ever to work again in a job for which the member is reasonably qualified by education training or experience.  The meaning of "unlikely" was not the subject of submissions before me.  I have had occasion to consider it in another application for judicial review, White v. The Board of Trustees, State Public Sector Superannuation Scheme No 3191 of 1996 judgment delivered 21 February 1997 in which there is some discussion of the cases and appropriate approach to the same definition.  To employ the test used in the refugee cases, Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason J at p.389, the ordinary meaning of "unlikely" means no real chance. Other cases use the test "improbable". The Board briefly stated that it considered that the applicant "will be capable of working in the future". That suggests that the Board appreciated the appropriate degree of future predictability.
           What kind of job the applicant is likely in the future to work at is limited by the words "is reasonably qualified by education training or experience", Dufty v. City Mutual General Insurance Limited (1977) Qd. R. 94 per Kniepp J at p.96. Accordingly to say as Dr Olsen did in his second report that the applicant should not be considered and unable to work "in any capacity" is to apply the wrong test. A number of cases have considered similar provisions to that under consideration. In Riley v. National Mutual Life Association of Australia Limited (1986) 4 ANZ Insurance Cases 60-684 the condition precedent for the opinion of the decision maker was that the member had become incapacitated "to such an extent as to render the member unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience". Cosgrove J said at p.74,063:

"In my opinion the test can be paraphrased as follows:  is the incapacity of the plaintiff such as to render it unlikely that he will ever again become a regular member of the workforce (ie available for work and able to work in any suitable occupation?)"

If by "suitable" his Honour intended to refer to an occupation for which the person was qualified by education training or experience, the test he proposes is appropriate.  In Ivkovic the relevant phrase in the schedule to the policy defining total and permanent disablement included "... is unlikely to ever be able to follow his usual occupation and any other occupation for which he could be reasonably considered qualified by education training or experience".  Commissioner Roberts-Smith QC said at p.351

"Ability to follow an occupation connotes more than a mere physical capacity to perform certain tasks.  The relevant definition of total and permanent disability here expressly adverts to the insured's education, training or experience.  I take this to mean the insured's education training and experience as at the date the claim for payment for benefits is being considered ...

The plaintiff's qualifications in these respects were limited in the extreme.  I accept ... [the] submission that even if it were reasonable to conclude the plaintiff was fit for light duties, with the sort of restrictions and limitations noted in the report ... he would still have been effectively unemployable and hence unlikely ever to be able to follow his occupation of welder or any other relevant occupation."

In Cavill Power Products Pty Ltd v. Royle [1992] 42 IR 229, decision of the Full Court of the Supreme Court of South Australia, the member obtained benefits if he was:

"... prevented by reason of the said injury or sickness from engaging in each and every occupation or employment for wage or benefit for which he is reasonably qualified by training, education or experience."

The insured's training education and experience was as a diesel mechanic.  A special job had been devised for him at a simple clerical level after his knee had been injured but he did not perform well at that work.  His injury rendered him totally unable to carry out his usual occupation as a diesel mechanic.  Matheson J concluded at p.240:

"It is abundantly clear that the respondent is totally disabled from working as a mechanic of any kind.  He is not "reasonably qualified" for any other "occupation or employment for wage or profit".  He is fit for clerical work, but not relevantly qualified for it.  There may be some light duties that the respondent could undertake, but bearing in mind his age and disabilities, I do not consider that he should be excluded from the benefits of the plan."

Of some relevance is the decision in Allessi v. National Mutual Life Association of Australasia Ltd (1982) 2 ANZ Insurance Cases 77,723. That policy defined total and permanent disability to mean disability so as wholly to prevent the insured "from engaging in his occupation or any similar occupation nor any other occupation for which he is fitted by his knowledge, training, status and abilities ...". Wickham J observed at p.77,725

"I do interpret the clause in the policy as applying not merely to any ability to do any kind of work at anything but, in the case of this insured to relate to him being prevented from carrying on any occupation which his abilities allow him to carry on, having regard to his knowledge, training and status as a carpenter and, specifically, as a roofing carpenter.  I would, however, conclude that it would not be sufficient for the plaintiff to show merely that he was not able to carry on as a roofing carpenter unless he showed he was not able to carry on some kind of occupation generally related to that of a carpenter.  If, for example, he was capable of carrying on light work as a carpenter and that was in accordance with his abilities or abilities which he could with reasonable diligence acquire, then I would conclude that he has not demonstrated that the risk covered by the policy had, in fact, been incurred by him in this particular case."

See also Giles v. National Mutual Life Association of Australasia Ltd (1986) 4 ANZ Insurance Cases 60-751 and Edwards v. The Hunter Valley Co-op Dairy Co Ltd (1992) 7 ANZ Insurance Cases 61-113.
           In forming its opinion as to the applicant's future employability has the Board asked itself the wrong question?  The reasons are so brief as to preclude any understanding of the approach taken by the Board.  It is required to inform itself by obtaining the advice of not fewer than two medical practitioners and it is to those reports that attention must be given to see if they reveal error.  Drs Brazel, Boys and Goldston apply the appropriate criteria.  Dr Gillett concluded that the applicant would not be able to do the type of farm work or carpentry work that he had done "in the past".  The test is whether he can be expected to be able to utilise his education training and experience in the future.  Dr Gillett may be inferring that he cannot but he does not say so unambiguously.  However in his second report he clarifies this but refers only to experience and not education and/or training which, here, may be relevant because of the applicant's qualifications as a carpenter not fully utilised over 17 years as a farm labourer.  Dr Olsen does not refer to the correct tests.  In his second report he states that "it would be shameful to consider him an invalid and totally unable to work in any capacity".  He adds that the applicant would be a suitable candidate for rehabilitation.  This, as I have mentioned above, is not the test set out in the Deed.  He noted that the applicant had some training and qualification and experience.  He suggested some types of work which may prove suitable, but hesitates to be more specific being hampered by very little information about the applicant's capacities.  Those observations do not fulfil the criteria set out in the Deed.
           The only medical opinion which supports the Board's decision and which is consistent with the criteria in the Deed is that of Dr Boys.  It cannot therefore be concluded that the Board fell into error in applying the wrong test even though it was incorrect to state that Dr Gillett indicated improvement in the applicant's condition since any improvement could only be relevant if it related it to the likelihood of employment.
           Accordingly I do not conclude that the Board fell into error.
Unreasonable exercise of power
           It is convenient to consider the grounds of irrelevant considerations, relevant considerations and general unreasonableness together.  The first attack is upon the Board's material finding that Dr Boys, Dr Gillett and Dr Olsen indicated that an improvement in the state of the applicant's condition could be expected.  Dr Boys stated that some improvement of his symptoms and function could be expected over the twelve months following his opinion.  He added that it was likely that the applicant would experience "slow resolution of sciatic symptoms" but that activity related low back pain was likely to be persistent.  Dr Gillett suggested that the natural history of a degenerative condition of the spine is such that it will improve but the improvement would occur so far into the future and as to be beyond the applicant's normal working lifetime.  Whilst Dr Olsen does not in terms say that the applicant will improve it is clearly implicit when he advises that activity at a high level constitutes the best treatment for sciatic disability.  He noted that the problem being primarily degenerative was temporary in its severity.  Whilst it might be correct to say that Dr Boys opinion was guarded nonetheless it was an opinion expressed as "likely" to occur.  Although it is incorrect to state that Dr Gillett indicated that there would be relevant improvement I am not persuaded that it infects the decision.
           The relevant consideration which it is submitted the Board failed to take into account is the limited qualifications, education, training or experience of the applicant.  As I have indicated, although Dr Olsen did not appear to apply the test in the Deed as to future employability Dr Boys did.  It was for the Board to choose between differing medical opinions and if there was one which supported the Board's decision and proceeded on a correct application of the criteria in the Deed, in the absence of detailed reasons, this is sufficient. 
           It was submitted to be unreasonable in the relevant sense for the Board not to accept the opinions of the treating general practitioner and specialist.  There is no doubt that the opinion of a treating doctor, particularly a specialist, must be given all due consideration but it is not necessarily unreasonable not to accept that opinion.  Since the Board is required to obtain the opinion of at least two medical practitioners it must be envisaged that a choice may be made and where the other opinion is otherwise or well informed and approaches the question to be answered in a correct manner then the Board may be persuaded by that opinion and in so doing may be acting reasonably.  The comment of Dr Olsen which is in no way qualified by his approach generally that the report by Dr Boys afforded more information of relevance to determine the question in issue, is something that the Board could take into account bearing in mind Dr Olsen's expertise.
           Finally, it was submitted that there was no evidence that the applicant had available to him a job which could utilise his limited capacities.  The test is that of capacity ever again to work in a job for which he is reasonably qualified by education training or experience not that there is a particular job available.
           There is nothing to demonstrate that the Board relevantly fell into error in reaching its decision.  That the court may have reached a different conclusion is irrelevant, Parramatta City Council v. Pestell (1972) 128 CLR 305 at p.323.
           It should be noted that by cl.12.1(3) the Board is required to reconsider its decision when any new evidence is submitted by or on behalf of a person subjected to an adverse decision by the Board.  It is for a member to satisfy the Board that he falls within the criteria for categorisation as being totally and permanently disabled.  In a case such as this one might have expected that the Board ought to be assisted by the provision of a report relating to the applicant's progress in the rehabilitation program to which reference was made in passing in Dr Boys' report.  A comprehensive review by an occupational therapist or a specialist in rehabilitation medicine would permit the Board to assess more completely what the applicant's future prospects would be.
           The application for review is dismissed.