Schiwy and Defence Force Retirement and Death Benefits Authority [2002] AATA 82 (13 February 2002)

Last Updated: 13 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1478

GENERAL ADMINISTRATIVE DIVISION )

Re NERINE SCHIWY

Applicant

And DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr P Lindsay, Senior Member Mr A Argent, Member

Date 13 February 2002

Place Melbourne

Decision The Tribunal sets aside the decision under review and in substitution decides that Ms Schiwy's incapacity in relation to civil employment is 50% and that she be reclassified as Class "B" on and from 10 March 2000.

(Sgd) Joan Dwyer

Senior Member

DEFENCE FORCE RETIREMENT AND DEATH BENEFIT AUTHORITY - decision of Authority to reclassify - reclassification from 50% incapacity for civil employment Class B, to 20% incapacity, Class C - vocational skills and experience - employment applicant might reasonably undertake - clerical duties - degree of incapacity due to Hodgkin's disease (in remission) and Acetabular Dysplasia both hips - decision set aside

PRACTICE AND PROCEDURE - difficulty identifying primary decision - need for a decision document which identifies the decision-maker by name and title and specifies the date of the decision

Defence Force Retirement and Death Benefits Act 1973 ss 30(1), (2), 34(1), (1A) and (1B)

REASONS FOR DECISION

13 February 2002 Mrs Joan Dwyer, Senior Member Mr P Lindsay, Senior Member Mr A Argent, Member

1. This is an application for review of a decision of the Defence Force Retirement and Death Benefits Authority ("DFRDBA") made 8 February 2000 under s 34 of the Defence Force Retirement and Death Benefits Act 1973 ("the Act"), which decided that Ms Schiwy's percentage of incapacity in regard to civil employment was 20%, and accordingly that she be classified Class C on and from 10 March 2000. That decision was confirmed on reconsideration on 17 November 2000.

2. Mr Carey of Counsel appeared for Ms Schiwy. Mr Dubé, Principal Solicitor with the Australian Government Solicitor appeared for DFRDBA. Ms Schiwy gave evidence. Evidence on her behalf was given over the telephone by her treating general practitioner, Dr Smith and by Mr Wearne, an orthopaedic surgeon. The respondent called Mr Dooley and Mr Macintosh, both of whom are orthopaedic surgeons. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the exhibits tendered during the hearing.

legislative background

3. Part V of the Act provides for invalidity benefits for members of the Defence Force, who are members of the superannuation scheme set up under the Act, and who have been retired on the ground of invalidity or incapacity to perform their duties. Section 30(1) and (2) provide as follows:

Classification in respect of incapacity

30. (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

. . .

(2) In determining, for the purposes of subsection (1), the percentage of incapacity in relation to civil employment of a member of the scheme, the Authority shall have regard to the following matters only:

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

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

(c) the degree to which the physical or mental impairment of the member that caused the invalidity or physical or mental incapacity because of which he or she was retired has or had diminished the capacity of the member to undertake the kinds of civil employment referred to in paragraph (b);

(d) such other matters (if any) as are prescribed for the purposes of this subsection.

4. The Act also provides for reclassification from time to time. Section 34 (1), (1A) and (1B) read as follows:

Reclassification in respect of incapacity

34. (1) The Authority may, from time to time, if it is satisfied that the percentage of incapacity in relation to civil employment of a recipient member in receipt of invalidity pay is such that the classification of the member should be altered, reclassify him in the appropriate classification set out in section 30 according to the percentage of his incapacity in relation to civil employment.

. . .

(1A) In determining:

(aa) what is the percentage of incapacity in relation to civil employment of a recipient member; or

(aab) what was, immediately before his or her death, the percentage of incapacity in relation to civil employment of a recipient member who has died;

the Authority shall have regard to the following matters only:

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

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

(c) the degree to which any physical or mental impairment of the recipient member, being a prescribed physical or mental impairment, has or had diminished the capacity of the recipient member to undertake the kinds of civil employment referred to in paragraph (b);

(d) such other matters (if any) as are prescribed for the purposes of this subsection.

(1B) In subsection (1A), prescribed physical or mental impairment, in relation to a recipient member or a deceased member who was immediately before his or her death a recipient member, means:

(a) a physical or mental impairment of the member that was the cause, or one of the causes, of the invalidity or physical or mental incapacity by reason of which the member was retired, whether or not that impairment changed, for better or worse, since that retirement; or

(b) any other physical or mental impairment of the member causally connected with a physical or mental impairment referred to in paragraph (a).

background facts

5. Ms Schiwy was born on 2 December 1958. She enlisted in the Royal Australian Navy on 3 May 1977. Some months after enlistment she began to notice pain in her hips, particularly on marching. She was diagnosed as suffering congenital subluxation of both hips. The left hip was operated on by Mr Schumack on 3 November 1977 (T3 p5). That operation was successful although there were complications after the surgery. Ms Schiwy was discharged to light duties on 6 February 1978 and gradually commenced weight bearing on the left hip. In 1979 Mr Schumack performed an operation on the right hip. This was not successful and Ms Schiwy has continued to have problems with walking or standing for any length of time. During 1979 Ms Schiwy was also diagnosed as suffering Hodgkins disease. She commenced treatment at Peter McCallum Clinic and that treatment continued until 1980.

6. Document T6 p10 records that in about June 1980 Ms Schiwy advised that because of her recent marriage she wished to leave the service. A decision was made on 13 June 1980 that it was appropriate, in view of her major medical problems, to invalid her out (T6 p10). The date of discharge seems to have been 25 June 1980 (T11 p15).

7. On 10 June 1980, Ms Schiwy applied for invalidity benefits under the Act (T8 p12). Information was provided to DFRDBA that the conditions which caused her invalidity were Hodgkin's Disease and Bilateral Subluxation of the Hips and that she suffered a 50% diminution of capacity to undertake civil employment (T12 pp16-17).

8. On 19 November 1980 a delegate of the DFRDBA determined in accordance with s 30 of the Act that Ms Schiwy's percentage of incapacity in relation to civil employment was 50% and accordingly she was classified Class B (T25 p44). It was also determined that there should be a review in 12 months.

9. Regular reviews took place between 1980 and 2000 when the determination under review was made. Throughout that period Ms Schiwy remained on a Class B pension, although the percentage of incapacity was reduced to 40% on 5 August 1993 (T55 p92) following receipt of a medical report from Mr Parkington, an orthopaedic surgeon (T54 pp89-91). It is somewhat ironic that the referral to Mr Parkington came as a result of a suggestion by an officer of the DFRDBA in the following terms (T51 p84):

Ms Schiwy has never been examined by a specialist. I think the orthopaedic condition alone may warrant a class A classification.

10. Mr Parkington in his opinion wrote (T54 p91):

Mrs. Schiwy is suffering from a mild degree of acetabular dysplasia. She has undergone surgery for this some years ago and there is no residual evidence of any subluxation in either hip. The joints are well preserved and she maintains an excellent range of movement. She has pain in both hips after walking for anything other than short distances and cannot stand for prolonged periods. This may be related to the previous shelf arthroplasties.

No further surgical treatment is indicated at the present time as the joints themselves are well preserved and congruous.

Mrs. Schiwy remains with a moderate disability which is permanent.

In reply to your specific questions:-

1. Mrs. Schiwy will experience difficulty with prolonged walking and standing and cannot carry heavy objects.

2. The extent of Mrs. Schiwy's incapacity has been stated and is permanent.

3. No further treatment is indicated at this present time and there is no prospect of Mrs. Schiwy's condition improving. I would consider her condition to have stablized and I think it will not change to such an extent that it will significantly alter her capacity for employment.

11. On 2 December 1996 a further opinion was obtained from Mr Pease, an orthopaedic surgeon (T58 pp100-103). He set out the history and recorded that Ms Schiwy had given him the following history of persisting problems (T58 p101):

1. "My hips come out". By this she means that she has pain in her hips "I am sort of used to it".

2. Her hips are sore at night.

3. She is uncomfortable when in bed, she finds it difficult to sleep.

4. Her hips become sore if she walks or indulges in any form of arduous physical activity. "When I sit I will have to get up carefully".

5. "My back is gone, my elbows go, my knees go - yeah . . . in pain everyday, initially I used to ignore it, I can't now".

6. "I find it difficult to do most things". "I need extra sleep 2 or 3 times a week, I have 3 children which drain me".

In regard to work, Mr Pease noted (T58 p101):

This lady was an electrical technician in the navy which she left in 1980. After leaving the navy she married and did very little for 18 months except to have one child. She thinks that she used a child's pusher to support herself. When she moved to Victoria she obtained work for 10 hours a week in an office job. "I ended up with a walking stick, for 2-3 months I couldn't get round at all".

Mr Pease concluded (T58 p103):

This lady may have mild symptoms in her hips but there is no abnormality on physical examination to substantiate her generalised complaints of pain and disability. I consider that she is fit for a very wide range of suitable employment. Although because of her frame and dysplastic acetabuli she would not be capable of undertaking arduous physical work nor any work which involved working in confined or awkward spaces, she would otherwise be able to seek and undertake employment on a full time basis.

Despite her complaints there are no abnormalities on physical examination apart from her surgical scars and flat feet. Treatment is not indicated. I consider that her condition is stable and that apart from the restrictions as given in the foregoing, she would be able to undertake full time work without disability.

12. In a statement completed on 3 September 1997 (T61 p107), Ms Schiwy advised DFRDBA that she had done office work for Mr Perrin, and her gross weekly salary had been $100 for 10 hours. She stated that the employment had lasted three months. She wrote:

Could not manage, I was in too much pain. And ended up with a walking stick.

13. On 29 September 1999 Ms Schiwy had a hearing before the Veterans' Review Board ("the VRB") in connection with her entitlement to pension under the Veterans' Entitlements Act 1986 ("the VEA Act") (T74 P128). It seems that she obtained a number of supporting statements in preparation for that hearing (T64-T70 pp 111-120). Included with those statements is a short letter from her former employer Mr Perrin, which reads as follows (T64 p111):

Dear Nerine

Following your telephone call I'm writing to confirm that you were unable to continue your work with me several years ago due to a hip complaint causing your back to suffer.

Regards

14. On 18 October 1999, DFRDBA requested that Ms Schiwy complete a further statement to assist it in determining whether a review should be undertaken. Ms Schiwy requested a re-assessment of her entitlement in November 1999. Either at that time or earlier, she forwarded to the DFRDBA the statements she had obtained prior to the VRB hearing from her mother, Annette Scott (T65 p112), her daughter, Nicole Schiwy (T66 p113), her natural therapist and neighbour, Wendy Dolan (T67 pp114-115), her friend, Robyn Wilkinson (T68 p116), a detailed statement of her own (T69 p117-119) and a statement from her partner, Edward Sady (T70 p120). Mr Sady wrote:

In 1994 Nerine started a job in an insurance agency. But soon found that the pain from her hips and back, caused by prolonged sitting at a computer, made it impossible to word [sic] and maintain a home with children. During this work period of three or four months she was reduced to using a walking stick even to get around the house. Nerine has difficulty in standing up after sitting and often is in danger of falling in her first few steps. She has difficulty walking any distance and is usually in pain after 30-40 metres.

15. Ms Schiwy had been referred to Mr Wearne, an orthopaedic surgeon, by her doctor, Dr Smith, in connection with the VRB hearing. Mr Wearne provided a report dated 17 June in 1999 in which he gave the following history as to Ms Schiwy's attempt to return to work (T71 pp121-125):

Ever since her service in the Navy Ms. Schiwy has continued to suffer with pain in both hips, particularly the right hip and this was followed by the development of aching in her back and then in both feet. However she was determined to live as normal and as active a life as possible and, after her arrival back in Victoria, she decided to enter the workforce and work in the office of an Insurance Agency for five hours per day for two days per week. Unfortunately this attempt proved a failure because of the increased pain in both hips and in her back. Because her right hip tends to be the more painful she relied more and more on her left hip and when the left hip became painful she found work impossible. She has made no other attempt at returning to work apart from some casual volunteer work at the children's school.

Mr Wearne concluded (T71 p124):

The above mentioned disabilities are having and will continue to have a very significant affect on Ms. Schiwy's life style and ability to work. At the present time she is very dependent on her children and her friends to help run her household. Furthermore, I believe that she is permanently incapable of performing sustained work, even of a light and sedentary nature unless she us [sic] able to work from home.

16. In response to Ms Schiwy's request for a re-assessment, Mr Lawson, Chairperson of the DFRDB Committee of Alternates, telephoned Mr Wearne and noted that he had said (T81 p151):

She was largely disabled with big restrictions with standing or walking. She may well be able to undertake her relevant employment but would need triple A ergonomic equipment and would require a break of 10-15 minutes each hour. He advised that the major problem for her would be commuting to such a job. She has major restrictions with both driving and transport in general.

17. An appointment was made for Ms Schiwy to see Mr Macintosh, an orthopaedic surgeon, then practising in East Melbourne. His opinion was similar to that of Mr Pease. He wrote (T84 p160):

I consider it likely that Ms Schiwy is not fit to perform heavy work or work involving repetitive bending and lifting or sitting and standing for any extended periods. She is not able to walk for long distances and will always walk slowly.

However, I consider that she would be fit to perform quite a range of light to moderate activities and cannot see why she could not be usefully employed in a clerical position.

Mr Macintosh also advised that in his opinion Ms Schiwy's disability with regard to work as a radio trades assistant would be small.

18. On the basis of Mr Macintosh's opinion, a decision seems to have been made to reclassify Ms Schiwy to 20% Class C (T85). It is not possible from the T documents to determine when or by whom that decision was made. The index to the T documents indicates that T89 is the primary decision. That is an unsigned document dated 14 March 2000 recording the Minutes of a Meeting of the Committee of Alternates held on 8 February 2000. It contains reference to a decision of "Person Authorised by the Commissioner for Superannuation" but does not identify that person by name or signature or title (T89 pp170-175). The first letter advising Ms Schiwy of the variation of her classification is dated 8 February 2000 (T86 pp 164-166). It appears from T85 p162 that the decision may have been made by the Chairperson of the DFRDB Committee of Alternates on 8 February 2000 though no name is given. Another letter referring to the decision is dated 2 March 2000 (T89 p169). It contains no reference to any decision-maker.

19. In a system which provides for reconsideration and review of administrative decision-making it is important that the decision under review be clearly identifiable and that the name and position of the decision-maker be able to be ascertained from the file. This is necessary so that the person's delegation to make such decisions can be verified. It can also be very important that the precise date on which the decision was made be clearly stated, as there are usually time limits within which review or reconsideration can be requested. We suggest that there should always be a document which is the actual decision as to which review may be sought, and that the decision should include the full name and position of the decision-maker, the date and, where possible, the reasons for decision. If the reasons are not available at the time of the decision, the statement of reasons should refer to the date of the decision and to the decision-maker by name.

20. Ms Schiwy sought a reconsideration of the decision to reclassify her to 20% Class C. She was examined by Mr Dooley, orthopaedic surgeon. His opinion was essentially similar to those of Mr Pease and Mr Macintosh. He wrote (T102 p203):

In answer to your question whether she is unable to undertake work as a radio trades assistant, apparently this does involve sitting and standing, fixing electronic equipment and at times getting into awkward positions and undertaking lifting moderately heavy weights.

In my opinion, she is fit for a wide range of sedentary type employment which would involve alternate sitting and standing. She would probably be able to do similar work to that of a radio trades assistant. She is not fit for heavy work which involves standing all day and doing moderately heavy lifting.

. . .

In summary, then, her capacity for work is diminished, but only for very heavy work. She is fit for a wide range of civil employment.

the issues for determination

21. Mr Dubé conceded on the second day of hearing that the decision under review should be varied. He submitted that it should be varied to classify Ms Schiwy as Class B. He said the DFRDBA contended that her percentage of incapacity was 40%. Mr Carey submitted that Ms Schiwy should be classified Class A. Section 34 of the Act, as set out in paragraph 4 of these reasons, specifies the only matters to which the Authority shall have regard in determining the percentage of incapacity in relation to civil employment.

(a) the vocational, trade and professional skills, qualifications and experience of Ms Schiwy.

22. In the early documentation about this matter it was noted that Ms Schiwy had passed a swimming test, and completed her recruit training and had completed Phase 1 of the Category Training in Electronic Communications and had also completed an "Acquaint Course in INRETC" (T12). The only one of those qualifications which might be regarded as a trade qualification would be Phase 1 of the Category Training in Electronic Communications. Ms Schiwy explained in evidence that she had only completed Phase 1 at the time she underwent surgery on her left hip. She said that because of her surgery and her Hodgkins Disease and the pain she felt in her hips sitting at a work bench for prolonged periods, she was unable to complete the practical tasks which were required for Phase 2 of the Electronic Communications training. Thus she did not ever reach the required level for qualification.

23. The parties agreed, and the evidence supported that agreement, that Ms Schiwy has general clerical skills. She said that she had done an office course and could perform office duties. In her evidence Ms Schiwy was asked about her training for the duties specified at T110 as those of a general clerk (trans p36):

Sorts, opens and sends mail,

records financial and other information and prepares documents,

photocopies documents,

prepares routine reports,

receives letters and phone messages and enters text on keyboards.

May provide customers with information about services.

May perform receptionist duties.

Ms Schiwy commented:

I actually did an office course which covered all those so, yes, I have had training in it all. Yes, I can do that.

24. Ms Schiwy gave evidence that she works on a computer at home. She said she is limited to an hour's work on the computer or for any other task (trans. pp20-21).

I love the computer, but I found any more than an hour, then I was paying too high of a price for what I was getting out of it.

And how long would it take for you to recover from any ill-effects for sitting at a computer for longer than an hour? --- I don't do much for the rest of the day. Basically.

25. As to her work experience, Ms Schiwy said that she has performed part-time office work for a period which she estimated as approximately three months. However it appears that the period may in fact have been more like six months or even longer. DFDRBA first learnt that Ms Schiwy was working part-time from the report of Mr Pease (T58 pp100-103) dated 2 December 1996 where, as set out in paragraph 11 of these reasons Mr Pease reported (T58 p101):

This lady was an electrical technician in the navy which she left in 1980. After leaving the navy she married and did very little for 18 months except to have one child. She thinks that she used a child's pusher to support herself. When she moved to Victoria she obtained work for 10 hours a week in an office job. "I ended up with a walking stick, for 2-3 months I couldn't get round at all".

26. That information was not followed up by DFDRBA, but in her next personal statement completed on 3 September 1997, Ms Schiwy advised that she had worked 10 hours a week for approximately three months. She did not provide any dates or any documentation relating to the employment but said that she could not manage as she "was in too much pain, and ended up with a walking stick" (T61 p107). In her evidence Ms Schiwy said that she had started work before Christmas 1993.

27. Ms Schiwy described her work (trans. p14 and 15):

Yes. I - through a friend of a friend I attempted to help a man start up an insurance company. So he got me working through him two days a week, five hours a day. And I was making appointments, getting his information down on the computers. Mostly making - trying to make appointments to consolidate a customer base for him. And he would travel and I would work out where these people were, and try and organise appointments for him. So it wasn't heavy work, by any means.

Did this work commence around about November of 1993, or thereabouts? --- Yes. And we worked for about four weeks and then he took Christmas off. And by then I was starting to get really tired and very sore but I thought I would be right after Christmas.

. . .

Did you resume work with the insurance salesperson after the Christmas break? --- Yes, I did. I started again, and - because I thought, you know, I am fine now. And within another three or four weeks, it was just getting progressively worse, to the extent that I started taking my walking stick to school - to work with me. And - - -

Can you just describe how long that break was? --- Over Christmas?

Yes? --- Probably about four to six weeks.

It was a four to six week break? --- Four weeks. Yes. I can't really remember. It was sort of - yes.

Now, you say that you were fine at the end of it. How long did it take before the symptoms made you feel - reduced to say that you feel fine? All that period, or halfway through that period? --- Probably halfway through the period. And then I forgot about it. You don't remember the pain you had yesterday, or you won't get up tomorrow. So you don't remember a lot. You don't remember your pain, because you just - you can't afford to.

On your return in the new year, in 1994, did your hours vary at all? --- No, I was on the same hours, but within the same amount of period of time I was getting worse again, so - - -

And what? Did you cease work? --- Yes. I ceased work. Yes.

28. The copy of Dr Smith's referral (R4) has the date 6 June 1994. That may indicate that when he wrote the referral on 24 May 1994, Dr Smith obtained an appointment for Ms Schiwy on 6 June 1994, and Mr Parkington wrote his report on the same day as he saw Ms Schiwy. That would mean that she had worked from about November 1993 and was still working in June 1994.

29. It was agreed that Ms Schiwy has no formal trade or professional qualifications. Prior to her service she had some experience working as a petrol station attendant. During her service she started training towards her qualification in electronic technical communications, but she only completed Phase 1 and that does not constitute a trade qualification in that field. Ms Schiwy said that she has some skills in fixing her own electrical equipment, but there is no evidence that those skills constitute a vocational or trade qualification.

30. We find that Ms Schiwy has vocational skills, qualifications and experience of clerical duties.

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

31. At various times since 1980 when Ms Schiwy was first classified there has been some change in the kinds of civil employment which it was considered a person with her skills, qualifications and experience might reasonably undertake.

32. The issue of the relevant kinds of civil employment was referred to in the preliminary determination of 8 February 2000 (see T85 and T89) as follows:

The Committee noted that Radio Trades Assistant had previously been determined as the type of civil employment relevant to assessment of Ms Schiwy's invalidity classification.

The Committee seemed to accept that previous determination.

33. In the reconsideration decision, T108, the Authorised Person considered the matter in more detail and concluded at paragraphs 12 and 13 as follows:

In considering the kinds of civil employment appropriate to Ms Schiwy, the Authority noted the comments of the Federal Court in DFRDB Authority v House [1989] FCA 516; (1989) 22 FCR 138 to the effect that employment criteria in the Act are to be considered in a broad sense. Bearing this in mind and having regard to the employment classifications listed in the Australian Standard Classification of Occupations (ASCO), Second Edition, published by the Australian Bureau of Statistics, the Authority considered, in view of the fact that Ms Schiwy had no formal civil qualifications for the occupation of Radio Trades Assistant (which had been found by the authorised person to be an appropriate employment for her based on her in-service qualifications and experience), that the employment of Apprentice Electronic Equipment Tradesperson was more appropriate to her experience. The Authority considered that General Clerk was also a relevant employment, based on her pre-service education and her ability to obtain this work in 1994.

Accordingly, the authority was of the opinion that the kinds of civil employment appropriate in Ms Schiwy's case are Apprentice Electronic Equipment Tradesperson and General Clerk.

34. During the first day of hearing of this matter the Tribunal asked whether there was any evidence indicating that a person aged 43, which is Ms Schiwy's age, would be able to obtain employment as an Apprentice Electronic Equipment Tradesperson. The Tribunal indicated that if it was to be asked to find that employment as an Apprentice Electronic Equipment Tradesperson was a kind of civil employment which a person with the skills, qualifications and experience of Ms Schiwy might reasonably undertake, it would require evidence to that effect.

35. At the commencement of the second day of hearing, Mr Dubé informed the Tribunal that the DFRDBA no longer relied on employment as an Apprentice Electronic Equipment Tradesperson as civil employment which a person with the vocational trade and professional skills, qualifications and experience of Ms Schiwy might reasonably undertake. The DFRDBA relied only on clerical duties or work as a general clerk as relevant civil employment.

36. The Tribunal finds that clerical duties is the kind of civil employment which a person with the skills, qualifications and experience of Ms Schiwy 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).

37. First, it is necessary to identify the prescribed physical or mental impairment of Ms Schiwy, in accordance with s 34(1B) of the Act. Under s 34(1B) (i) and (ii) the physical impairment of Ms Schiwy that was the cause of the invalidity by reason of which she was retired, was impairment from her hip condition and from Hodgkin's disease. The DFDRBA on reconsideration decided (T108 p219-220):

14. The Authority reviewed the service medical papers and noted the Report of Medical Board of Survey dated 13 June 1980 which stated:

"This member has two major problems requiring on going medical management.

Both hips have been operated on by Mr. Shumack and a further operation is required on the right hip. ...

Her Hodgkins (sic) disease is at present under control and is being treated with chemotherapy by Peter McCallum Clinic."

15. The Authority noted the following history provided by Dr Daly, ag/Director of Health, Hobart, on 21 October 1980:

"Had to have bilateral surgery for congenital hip dislocation soon after joining the RAN (L side) and about 12/12 later R side). Now unable to lie on either side and has intermittent pain on the L side and continuous pain on the R side and walks with a limp. Found to have Hodgkin's disease in June 1979 following biopsy of a gland in the neck. Treated with radiation and chemotherapy. At present in remission, but has a marked lack of energy ..."

16. The Authority was therefore satisfied that it had been Ms Schiwy's inability to perform the full duties of her posting and employment category because of pain and limitation in her hips and fatigue which had constituted the incapacity that led to her retirement.

Prescribed Physical or Mental Impairment

17. The Authority noted that Ms Schiwy's impairment was described by the Navy in the form DB107 as Hodgkin's Disease and Bilateral Subluxation of the Hips. It also noted that the description of Hodgkin's Disease had been modified by the addition of "in remission" and had been accepted by the specialist medical practitioners who had subsequently examined her. With regard to Ms Schiwy's hip condition, the authority noted that the majority of the specialists had preferred the description "acetabular dysplasia" and it accordingly considered that the hip condition should be so redescribed. [Mosby's Medical Encyclopedia: acetabular - "pertaining to the acetabulum, or cup-shaped hip socket into which the head of the femur is set", dysplasia - "any abnormal development of tissues or organs".]

18. The Authority noted that, apart from some low back pain arising from Ms Schiwy's hip condition [recent spinal x-rays were normal], there was no evidence pointing to the development since discharge of any separate conditions causing additional incapacity and accordingly concluded that Hodgkin's Disease (in remission) and Acetabular Dysplasia Both Hips constituted the prescribed impairment.

We accept those paragraphs as accurate and as setting out the relevant material. We find that Hodgkin's Disease (in remission) and Acetabular Dysplasia Both Hips constitute the prescribed impairment.

38. The Tribunal asked Ms Schiwy to describe the problems she had with her office job. She replied (trans. p37):

I have the same problem that I can't sit at desks for long times, I can't lift things and carry them around, I can't get into small places. I might be able to do it once but if I had to do it all day, I wouldn't be able to do it.

39. Ms Schiwy said that she started working as an office assistant in about November 1993. It was her recollection that she worked for about four weeks before Christmas and then had the Christmas and January time off. She said by Christmas the normal pain,which she has in her hip joints and lower back, was intensified, but that within three or four weeks of stopping work the pain had reverted to its normal level. She said that when she returned to work after the Christmas break, within three or four weeks the pain was worse again so she took a walking stick to work with her. She said she probably worked for about 12 weeks in total and that she felt like "an old woman" and both hips were bad and her back was sore. She said that she left her work because of the aggravation of her pain. Ms Schiwy explained that the pain occurs when the hip joint "goes out". She said her hips put themselves back but that does not happen until she sits down. Ms Schiwy said that her hips ache most of the time but the amount of aching varies. She said that she sometimes goes to a chiropractor and she goes swimming in an indoor pool twice a week for exercise. She does stretches two or three times a day and does belly dancing for exercise.

40. When asked to explain the problems she had in the work place, Ms Schiwy said that she cannot sit at desks for a long time, because it makes her hips hurt. She also said that the office was small and she had difficulty bending down to put things away and get things out. Ms Schiwy said she works as a volunteer canteen assistant at her children's school for about four and a half hours one day a fortnight. In cross-examination she agreed that she had worked two days a week in a school canteen in 1999, and that she then worked one day a week in the canteen.

41. Dr Smith, Ms Schiwy's general practitioner, had prepared a report dated 1 February 2001, which was received into evidence (A1). In his report Dr Smith wrote:

Secondary to her hip problems Ms Schiwy is now developing problems with low back pain and bilateral foot pain.

As a direct result of her disability Ms Schiwy is significantly impaired in her personal life and her employment capacity. Ms Schiwy walks with a rolling gait and can only walk 100 metres before she has to stop because of pain and fatigue. Ms Schiwy has great difficulty with steps/stairs and can not readily bend her back or lift objects. Also Ms Schiwy can only sit in a conventional straight back chair for 20 minutes periods before she develops hip and low back pain, and has to move or change position. Often Ms Schiwy can only get comfortable in a reclining chair.

Consequently Ms Schiwy is severely limited in her employment options. She can not do light or heavy manual work, she can only stand for short periods of time and similarly can only sit in a chair for short periods of time.

In my opinion Ms Schiwy would have to be 40--50% incapacitated by her disability.

42. Dr Smith gave evidence over the telephone. He said that he has noticed when Ms Schiwy visits him, which she does three or four times a year, that she does not sit comfortably in a chair and that after 15 to 20 minutes she is "wriggling around" and shifting her weight from one buttock to another, and that after approximately half an hour she will need to stand up. He said that Ms Schiwy has trouble sitting still and is forever shifting from one buttock to another and adjusting her back. He said "she is fairly anti-medication if she can get away with it". In cross-examination Dr Smith was somewhat confused as to whether his estimate of a 40-50% level of incapacity for employment, "by her disability", referred to manual work only, or also to light work such as clerical work. At one stage he said that Ms Schiwy's incapacity to undertake clerical work would be less than 40-50%, and in the vicinity of 30%, but when Mr Carey pointed out to him that in the report he had referred "light or heavy manual work", he agreed that the 40-50% incapacity applied to light not heavy manual work.

43. Mr Wearne also gave evidence over the telephone. He said it was difficult to explain Ms Schiwy's limited capacity for sitting, as most of her pathology is in her hips and they are not weight bearing when a person is sitting. But he said her need to wriggle about, as reported, is due to discomfort in the hips. He acknowledged that she could develop symptoms in her hips after sitting. He said that Ms Schiwy's difficulty in walking is due to her hips, and that in his opinion she is in the process of developing degenerative change, even though it does not yet show on X-ray. He said commuting to and from work and "more disciplined periods of sitting and standing" (trans. p43) could create a problem.

44. In cross-examination Mr Wearne said that in his opinion the period of two and a half months of part-time clerical duties did not show any capacity for work, as she could not continue that work. He said it would not change his opinion if that period was six or seven months of work. His opinion was reinforced when he was referred to a report from Mr Parkington who saw Ms Schiwy in June 1994 (R1). That report reads:

Thank you for your letter concern [sic] Nerine. She does have some increasing discomfort and is walking well using a stick. She says her back is also painful and because of this has to sleep prone. She is now working doing clerical work two days a week but has some trouble after prolonged sitting. She takes no tablets.

X-ray examination of her hips shows no change; there is a well preserved hip with only mild acetabular dysplasia.

I have advised her that further surgery and in particular an arthroplasty is out of the question at this stage as she is far too young and her level of handicap does not justify any further intervention.

45. The respondent called Mr Dooley. He said that Ms Schiwy is not fit for standing all day or for climbing up and down ladders or for carrying heavy weights. But, in his opinion, the symptoms of which she complained were mild, and he considered that she had a minimal incapacity for sedentary work, which did not involve prolonged sitting and standing.

46. In cross-examination, Mr Dooley said that he thought the history of pain given by Ms Schiwy was consistent with her condition, but he did not accept that she could not work more than 10 hours per week. He explained that the nature of the tasks required of her, when performing clerical duties, was not very different from the tasks she would carry out at home in her normal life. Dr Dooley said (trans. p64):

I have dealt with a lot of people with incapacities, and - including paraplegias. And they can, despite the discomfort, cope with, . . . the sort of work I am detailing. One with a paraplegia or with poliomyelitis, quite severe, where they would be only able to walk 100 metres before getting undue fatigue, or for standing for periods longer. But they cope reasonably well.

He said it is unusual to see such well preserved hip joints in somebody who has undergone the two shelf operations Ms Schiwy has undergone. He considered her rolling gait to be somewhat exaggerated, but he did not think it was feigned. He thought it was a subconscious exaggeration.

47. Mr Macintosh, who is now the Director of Orthopaedics at the Cairns Base Hospital, also acknowledged that Ms Schiwy would have difficulty sitting or standing for long periods, but he thought she could do clerical work full-time, if she could move around. He said she could have difficulty driving to work if the drive was longer than an hour. When Mr Macintosh was told that Ms Schiwy had said in evidence that after working 10 hours a week over two non-consecutive days, she had significant pain, he did not change his opinion. He maintained that Ms Schiwy could do full-time clerical work if she was not required to sit or stand for extended periods, and if there was no repetitive bending or lifting. He said he thought Ms Schiwy would be able to get up and move around when sitting became troublesome. He acknowledged that she cannot walk more than 100 metres without pain, but he said walking shorter distances should improve her back pain and relieve any pain in the hips. He said she could do a small amount of bending and lifting with proper care.

48. We find that if Ms Schiwy did not have the impairments resulting from her hip condition she could perform standard clerical duties on a full-time basis. Because of those impairments she has some restrictions in her capacity to perform clerical work. She has a diminished capacity to sit or stand for lengthy periods without changing her position. She can not walk for greater than 100 metres without stopping and she cannot lift heavy weights. All the medical witnesses agree that she should not perform repetitive bending or be required to go up and down stairs frequently or quickly.

49. There is a variety of clerical work available in the community. Document T110 p226, as set out in paragraph 23 of these reasons, gives the following description of the tasks required of a general clerk:

Tasks Include:

* operates business machines and telephone equipment

* sorts, classifies and files information

* sorts, opens and sends mail

* records financial and other information and prepares documents

* photocopies documents

* prepares routine reports

* receives letters and phone messages and enters text on keyboards

* may provide customers with information about services

* may perform receptionist duties

Ms Schiwy agreed in evidence that she could perform all those duties. But she said that she was unable to continue working 10 hours a week because of increased pain after 12 weeks or so. We find that the estimate of the time she worked was not accurate. But we find that Ms Schiwy's capacity to perform clerical duties is diminished because of the limitations set out in paragraph 48 above.

50. The difficulty is that we do not know how long Ms Schiwy persevered with her work or what efforts were, or could have been, made, to adapt the office environment to make it more suitable for her. Nor do we know how she would cope with work now that her children are older and therefore presumably less of a "drain" on her (see paragraphs 11 and 14 of these reasons).

51. Mr Pease, Mr Dooley and Mr Mcintosh all expressed the opinion that Ms Schiwy could work full-time in a wide range of light duties. Mr Pease said such duties should not involve "arduous physical work" or "working in confined or awkward spaces". Mr Mcintosh excluded heavy work or work involving repetitive bending and lifting or sitting and standing for extended periods or walking for long distances. Mr Dooley excluded "heavy work which involves standing all day and doing moderately heavy lifting".

52. The opinions of Mr Pease, Mr Macintosh and Mr Dooley would indicate that Ms Schiwy has very little incapacity for clerical duties. Her evidence on the basis of one attempt at part-time clerical duties is that she tried it and her condition became worse and therefore she has very little capacity even for clerical duties.

53. The two treating doctors are Dr Smith and Mr Wearne. Dr Smith in his report did not estimate Ms Schiwy's incapacity to be more than 40-50%. He referred mainly to a need to change position after sitting in a conventional straight back chair for 20 minutes. Clerical duties employment does offer the possibility of a change of position when required, and even a change of task from time-to-time.

54. The strongest medical evidence in support of Ms Schiwy's claim to be classified A, for a level of incapacity of 60% or more, was Mr Wearne. He wrote in his report that Ms Schiwy was "permanently incapable of performing sustained work, even of a light and sedentary nature unless she is able to work from home" (T71 p124). When the Tribunal asked Mr Wearne if he could explain the difference between his opinion and that of the other orthopaedic surgeons, he suggested that the difference between his estimate of incapacity and that of Mr Dooley, Mr Pease and Mr Macintosh, that Ms Schiwy was fit to work full-time in light clerical duties, was that he paid more attention to her complaints of pain, which he thought were genuine. He said that they relied more on the fact that Ms Schiwy had a full range of movement of both hips. Mr Wearne said that the fact that Ms Schiwy was contemplating further surgery when she saw Mr Parkington in June 1994, supported his opinion that her pain was genuine.

55. In assessing incapacity under the Act there is no prescribed approach. There is no Guide, similar to those used in relation to assessment of the degree of incapacity under the Veterans' Entitlements Act 1986 or in relation to permanent impairment in compensation matters, directing the Tribunal how to assess the degree to which the physical impairment suffered by Ms Schiwy has diminished her capacity for work. We must form an assessment on the evidence of Ms Schiwy, and that of the medical witnesses.

56. The evidence of Mr Pease, Mr Dooley and Mr Mcintosh would indicate that the degree of relevant incapacity of Ms Schiwy is in the vicinity of 20%. The evidence of Ms Schiwy and Mr Wearne would indicate that the appropriate assessment would be more like 80%. We are not persuaded to either view. It seems to us that Mr Pease, Mr Dooley and Mr Mcintosh have not taken sufficient notice of Ms Schiwy's complaints of pain. On the other hand Ms Schiwy and Mr Wearne seem to us to have placed too much reliance on one failed attempt to re-enter the work force at a time when Ms Schiwy herself said she found her family responsibilities draining. They appear to have given little thought to investigating whether measures such as ergonomic office furniture or a program of rotating duties or any other adjustments might not have shown that Ms Schiwy had more capacity for work than her one attempt demonstrated. Further Ms Schiwy was so vague as to the time she actually maintained her part-time work that without the records being produced, it is not possible to know whether the duration of employment was 12 weeks as Ms Schiwy said or six months from November 1993 to June 1994 or even longer.

57. We find that the higher level of the 40-50% range suggested by Dr Smith is the best estimate of Ms Schiwy's incapacity in relation to civil employment, as required by s 34 of the Act. That means that Ms Schiwy should be reclassified Class "B".

58. The Tribunal will set aside the decision under review and in substitution decide that Ms Schiwy's incapacity in relation to civil employment is 50% and that she be reclassified Class "B" on and from 10 March 2000.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr P Lindsay, Senior Member and Mr A Argent, Member

Signed: Grace Carney

Personal Assistant

Date/s of Hearing 19 and 20 December, 2001

Date of Decision 13 February 2002

Counsel for the Applicant Mr M Carey

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Nil

Solicitor for the Respondent Mr B Dubé