Barber and Defence Force Retirement and Death Benefits Authority [2003] AATA 1159 (19 November 2003)

Last Updated: 20 November 2003

DECISION AND REASONS FOR DECISION [2003] AATA 1159

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/157

GENERAL ADMINISTRATIVE DIVISION	)
	Re	JAMES ARTHUR BARBER

Applicant

And

DEFENCE FORCE RETIREMENT AND DEATH BENEFITS AUTHORITY

Respondent

DECISION

Tribunal

Associate Professor B W Davis AM (Part-time Member)

Date 19 November 2003

Place Hobart

Decision

The decision under review is set aside and in substitution therefor a decision that James Arthur Barber is to be paid invalidity pension at the rate of Class A, 60 percent or more, with effect from 12 December 2000.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

DFRB - review - physical and mental impairment - vocational and professional skills - work experience - employment capabilities - degree of incapacity or impairment.

Legislation

Defence Force Retirement and Death Benefits Act 1973 - ss30 and 34

Authorities

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

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

Re Davis and Repatriation Commission (1987) 12 ALD 483

Re Freeman and Defence Force Retirement and Death Benefits Authority (unreported) 17 September 1984 (AAT 1778)

Re Chambers and Repatriation Commission (1995) 55 FCR 9

Re Greer and Defence Force Retirement and Death Benefits Authority (2001) 63 ALD 282

Re Greer and Defence Force Retirement and Death Benefits Authority (2003) AATA 6

REASONS FOR DECISION

19 November 2003

Associate Professor B W Davis AM (Part-time Member)

DECISION UNDER REVIEW

1. The decision under review is a decision made by a delegate of the Defence Force Retirement and Death Benefits Authority (DFRDBA) on 12 December 2000 reclassifying Mr James Arthur Barber from 60 percent Class A to 40 percent Class B incapacity pursuant to section 34 of the Defence Force Retirement and Death Benefits Act 1973 ("the Act").

2. The applicant (James Barber) sought review of this decision on 4 May 2001, but it was reaffirmed on 21 September 2001. The applicant then appealed to the Administrative Appeals Tribunal on 9 October 2001.

ISSUES

3. Whether, based on evidence before the Tribunal, the applicant's invalidity classification was 40 percent Class B as at 12 January 2001.

4. In particular, what are the kinds of civil employment which a person with the applicant's trade and professional skills, qualifications and experience might reasonably undertake.

STANDARD OF PROOF

5. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

LEGISLATION

6. Relevant legislation is sections 30 and 34 of the Act:

"(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
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."

31 ...

32 ...

33 ...

(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:

(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."

BACKGROUND

7. James Arthur Barber was born on 14 May 1967 and joined the Australian Defence Force (Army) on 3 October 1984 as a specialist electronics technician trainee. His aptitude and commitment led to high specialist ranks and supplementary qualification in other fields, such as heavy vehicle driver and physical education instructor. He fully intended to pursue a lifetime career in Army service, even though this involved some periods of absence from his supportive family. He received a medallion in January 1992 for exceptional service with the Army.

8. During service he sustained injuries to both ankles (April 1986 and May 1992) the toes of both feet (March 1998) and then a major spinal injury in April 1996, leading to medical discharge from the Army on 12 May 1997. The physical impairment giving rise to his retirement was stated to be:

"Spinal canal stenosis, L4/5, L5/S1 disc protrusions".

9. On 8 May 1997 the DFRBA determined that he was entitled to be classified A under section 30 of the Act, his percentage of incapacity being 60 percent or more.

10. For the purpose of s30(1) of the Act, the applicant's vocational, trade and professional skills, qualification and experience, and the kinds of civil employment which a person with those skills, qualification and experience might reasonably undertake were determined to be:

* Electrical instrument fitter

* Workshop supervisor (electronics)

It was considered these impairments diminished Mr Barber's capacity to perform those kinds of employment to a large degree.

11. Mr Barber then sought post defence training and employment, completing a Bachelor of Commerce degree at the University of Wollongong between July 1997 and December 1999. He was then employed as a graduate taxation officer in Hobart until November 2000 and as a taxation officer in Hobart from 16 November 2000 until 31 October 2001.

12. Mr Barber resigned from his appointment in late 2001, claiming he was physically and mentally incapable of performing his duties, despite his desire to do so. He claimed to be suffering severe back pain, had difficulty in sitting, standing and moving about and had been forced to take high levels of sick leave.

13. In the interim, as a result of the passage of time and changes in his employment status, the Invalidity Assessment Section of the DFRCB Authority had submitted a request on 4 December 2000, seeking reconsideration of his percentage of incapacity in relation to civil employment. It was submitted that the kinds of employment the applicant might reasonably undertake were:

* Electrical instrument fitter

* Workshop supervisor (electronics)

* Taxation officer

14. On 12 December 2000, a delegate of the DFRBDA determined that Mr Barber be re-classified pursuant to s34 of the Act from 60 percent Class A disability to 40 percent Class B invalidity, with effect from 12 January 2001.

15. The delegate also determined that the kinds of civil employment Mr Barber might reasonably undertake were:

* Electrical instrument fitter

* Workshop supervisor (electronics)

* Clerk

The prescribed physical or mental impairment was stated to be:

"Spinal cord stenosis L4/5, L5/S1 disc protrusions".

It was considered this would diminish his capacity to undertake civil employment:

* As an electrical instrument fitter to a large degree.

* As a workshop supervisor (electronics) to a moderate degree.

* As a clerk to a small degree.

Resulting in an overall moderate degree of diminution.

16. On 4 May 2001 Mr Barber requested reconsideration of the DFRDBA decision of 12 December 2000.

17. On 21 September 2001 the DFRBDA made a determination reaffirming its decision of 12 December 2000. It further found that pursuant to section 34 of the Act:

(a) that the kinds of employment which a person with the applicant's vocational, trade and professional skills, qualifications and experience might reasonably undertake (disregarding all impairments) were:

* Electronics engineering technician.

* Workshop supervisor (electronics).

* General clerk.

(b) that "spinal canal stenosis and L4/5 and L5/S1 disc protrusions" constituted the applicant's prescribed impairments; and

(c) the applicant be re-classified under s34 of the Act as 40 percent Class B with effect from 12 January 2001.

FACTS AND CONTENTIONS

18. Both parties filed statement of facts and contentions and associated amendments, with the AAT prior to the Tribunal hearing.

19. The primary contention of the applicant is that he is incapacitated from civil employment as an instrument fitter, works supervisor, taxation officer or clerk, to a percentage in excess of 60 percent, even though he has attempted to remain in employment of that kind, although suffering a range of physical and mental disabilities.

20. He also claims the DFRDBA erred in not giving sufficient weight or no weight at all to his training, experience and personal aptitudes, in determining the percentage of incapacity for civil employment.

21. The applicant indicated he would rely upon the evidence of a number of medical practitioners to demonstrate his mental and physical impairment was 60 percent or more. It would also be argued that physical impairments in the form of hallux valgus and right and left ankle conditions had not been acknowledged as further reasons why the applicant had been forced to retire from the Army.

22. The primary contention of the respondent is that the kinds of civil employment that a person with the applicant's skills, qualifications and experience might reasonably undertake are:

* Electronic engineering technician

* Workshop supervisor (electronics)

* Clerk; and

* Accountant.

23. The respondent further contended that on the basis of in-service documents at the time of discharge, the invalidity or mental or physical incapacity which led to the applicant being unable to perform his duties was "... inability to lift light loads, to bend or twist, to sit longer than 30 minutes or stand for prolonged periods". The prescribed impairment is "... spinal canal stenosis, L4/5, L5/S1 disc protrusions".

24. The respondent also claimed that it would not be reasonable, given the applicant's disabilities and tertiary qualifications for the applicant to undertake essentially manual labour, such as a driver or a physical instructor. The respondent also contended that the applicant does not suffer from any physical or mental impairments which are causally linked with the impairments set out above.

THE TRIBUNAL HEARING

25. The AAT hearing was conducted in Hobart on 8 and 9 October 2003. The applicant was represented by Mr Roger Baker of counsel and the respondent by Mr Ben Dubè and Kate Arnold of the Australian Government Solicitor office.

26. Mr Baker outlined issues in the case and then called Mr James Barber as witness. A series of detailed questions were put to the applicant about his Army career, physical injuries, discharge from service, post defence force university education, employment as a taxation officer, decline in mental and physical wellbeing and domestic situation.

27. Mr Barber emphasised his deep commitment to Army service, which he had regarded as a lifetime career and the deep shock to him when injuries forced him to retire. His aptitude and dedication to the service had resulted in promotion, a considerable degree of autonomy and responsibility and culminated in the award of an Exemplary Conduct Medal in 1992. In addition to advanced rating in the field of electronics he had voluntarily attended other courses leading to qualification in fields as diverse as bio-medical technician, advanced heavy vehicle license and a role as unit physical instructor.

28. During service he had suffered significant injuries to his left ankle (17 April 1986), the toes of both feet (15 May 1992) and his left ankle (18 May 1992), which collectively had reduced his combat capability, even after ankle reconstructions. He described how a spinal injury had occurred on 28 April 1996, while removing materials from a vehicle; he had suffered excruciating pain and although treated with painkillers and anti-inflammatories, felt he had lost function and his mind had slowed. He was treated by an orthopaedic surgeon, Dr P Sharwood, who reported on 28 November 1996 there was no absolute indication for surgery, but it was unlikely he would get back to full physical capabilities necessary for his rank and trade.

29. Other medical reports tended to conform this view, so he sought discharge from the defence force which occurred on 12 May 1997 on medical grounds. The retirement impairment was stated to be "... chronic low back pain with sciatica and minor bladder symptoms due to spinal canal narrowing and protrusion of lower lumbar discs." Mr Barber said he was classified as 60 percent Class A disability from May 1997 onwards.

30. The need to pursue a civil career and meet retraining needs encouraged him to enrol at the University of Wollongong from July 1997 until December 1999, when he was awarded a Bachelor's Degree in Commerce. Some of his army qualifications did not prove as useful as he had hoped, so he sought employment as a Graduate Taxation Office in Hobart from 9 February 2000 until 15 November 2000, when he was successful in being appointed a Taxation officer from 16 November 2000 until 30 October 2001. He states he was forced to retire from that employment because he was physically and mentally incapable of continuing in that, or any other employment.

31. Mr Barber claimed that during Taxation Office employment he experienced difficulty in sitting, standing, moving about the office, operating a computer and meeting schedule workloads, while trying to cope with pain. Living outside Hobart it was difficult driving to and from work and many intended tasks on his small holding could not be accomplished. This placed a strain on family relationships with his wife and two sons and sometimes led to depression in trying to meet performance standards and strain upon relationships in the office. He had to forego some anti-inflammatories because they caused stomach problems and the regime of painkillers had debilitating effects on his senses, making him lethargic and incapable of remembering things. His employer was unhappy about his unreliability, while he increasingly used alcohol as a coping strategy. It all became too much, so he eventually resigned from the Taxation Office in late 2001 and had remained unemployed ever since.

32. Mr Barber indicated these events had severely impinged on his social life, but more seriously affected family relationships to the point where he and his wife separated for a period. They were now partially reconciled, but negotiations were proceeding for a sale of their property. His life had settled into a reasonably consistent pattern, involving a few light tasks and lengthy relaxation periods, but it was all driven by the need to constantly manage pain.

33. Mr Barber claimed he had been inappropriately treated by the DFRDBA, in that they failed to take into account several factors, including his ankle injuries and some qualifications, in reaching the decision to downgrade his incapacity status from 60 percent Class A to 40 percent Class B on 12 December 2000.

34. Dr C Kenna, a consultant in musculoskeletal pain management was next interposed as expert witness, stating that in a report dated 30 September 2002 he took into account both the spinal canal stenosis and injuries to the ankles in reaching a decision that the applicant was unfit for employment as an electrical instrument fitter, workshop supervisor, taxation officer, heavy articulated vehicle driver or physical instructor. He considered that an assessment of greater than 60 percent incapacity had been made.

35. Dr Kenna was cross-examined by Mr Dubé for the respondent, about references to a neck problem as well as spinal stenosis, noted by other medical practitioners including Dr Clifford and Mr Hunn. Dr Kenna argued that progressive degeneration of Mr Barber's condition could have created such symptoms, but a "pain diagram" tendered could only be regarded as indicative in the absence of detailed scans. Dr Kenna admitted that his assessment had come some time after the Authority's decision to reclassify Mr Barber's incapacity in December 2000; nonetheless he considered the applicant had been incapacitated to a considerable degree when leaving the Army and seemed to have worsened since. His back problem was significant; involving ongoing pain, and this and other factors severely restricted his employability.

36. Mr Barber was then recalled as witness and after being questioned about medication and its effects on his lifestyle and employability, was asked how he would rate his capability to engage in the various vocations identified by parties to the case. He responded that it would be impossible for him to resume an electronics technician/work supervisor role because it involved working in awkward spaces, as well as bending, lifting and operating equipment. He might be able to supervise gym classes, but would not receive recognition without a capacity to do exercises himself. He was not trained as a clerk and found that vocation "repulsive" and could not pursue an accountancy role except on a limited basis, with very low reliability to perform.

37. Dr T Rush, a general practitioner, was then called as witness and after consulting various clinical notes prepared by herself and her colleague Dr Chow, between January 2000 and November 2002, reported that on 19 April 2001 the applicant was suffering chronic pain which made it difficult to cope with full-time employment as a taxation officer. At that stage Mr Barber was becoming increasingly depressed by his chronic pain and taking a considerable number of days off as well having used up his sick leave. While she could not speak for Dr Chow, his earlier clinical notes indicated Mr Barber suffered considerable pain, low morale, stress and some lethargy due to medication from January 2000 onwards. Mr Barber could present in different ways, but he was often depressed, agitated and suffering ongoing discomfort.

38. Under cross-examination Dr Rush said that in her opinion, injury of the lumbar spine was the principal incapacity, but she accepted that some other specialists such as Dr Clifford and Mr Hunn considered there was a neck problem as well.

39. Dr D Jones was called by videolink to New Zealand and after being sworn, indicated he was a consultant orthopaedic surgeon who had provided reports on Mr Barber's incapacities on 9 November 2000 and 30 June 2001. He agreed injury of the lower spine was the principal problem and indicated that although Mr Barber could probably only sit for short periods, such as 25 minutes, he had not tested sitting tolerance over a working day.

40. Dr Jones assessed Mr Barber's condition at the time as moderate impairment overall. Mr Barber's psychological state seemed normal, but that was merely his opinion and he had not really investigated the medication regime. His overall assessment of incapacity at the time was in the range of 30 to 60 percent.

41. Mrs Kay Barber was sworn and gave evidence about changes in her husband's physical and mental well being, following his back injury and return to civilian employment. His temperament had changed markedly, due to frustration and pain. The psychological impact of leaving the Army had been devastating and mental depression was also involved, with alcohol as a coping mechanism. Social life and family life and deteriorated markedly as a result, leading to separation for a period and only limited reconciliation.

42. Mrs Barber stated her husband had found it very difficult to cope with full-time employment as a taxation officer. He could not stand or sit for long, felt outside his work group, was worried about failure to meet deadlines and workload and had been forced to take considerable time off due to pain. She agreed his life now revolved around pain management and did not believe him capable of full-time work, due to unpredictable availability as much as capacity to undertake various tasks. She was uncertain about the future, given his severe disability.

43. In detailed closing submissions, counsel for the applicant noted the considerable medical evidence from a number of practitioners and specialists, indicating that Mr Barber's disabilities were substantial, both at the time of the Taxation office service and currently, his initial entitlement to an A class pension being based upon acceptance of incapacity of 60 percent or more. The applicant also submitted that the primary decision of the respondent made on 12 December 2000 was fundamentally flawed, because it relied almost solely upon the assessment of Dr Jones and had not accurately taken into account the real duties involved in the various kinds of civil employment considered.

44. The respondent's written submissions claimed that taking a global approach to the situation, the weight of evidence before the Tribunal supported a finding that the applicant's impairments resulted in a moderate degree of incapacity for civil employment. While the degree of incapacity might be large for tasks such as electronics technician or workshop supervisor, it was small for vocations such as clerk or accountant. The decision to reclassify the applicant from 60 percent Class A to 40 percent Class B incapacity was therefore correct and preferable in the circumstances and the Tribunal should therefore affirm the decision.

ANALYSIS

45. The Tribunal is required to stand in the shoes of the original decision-maker examining all evidence anew, bearing in mind statutory provisions and any relevant case authorities.

46. What is at issue here is whether the delegate of the DFRDBA acted correctly in reclassifying Mr Barber from 60 percent Class A to 40 percent Class B disability on 12 December 2000 and whether decisions made about the kinds of civil employment a person with his skills, qualifications and experience might undertake were appropriate.

47. There is a considerable array of medical evidence from a number of practitioners and specialists, but it is necessary to consider these chronologically and in context to identify what assessments and judgments existed prior to, at and after the decision of 12 December 2000.

48. It should be noted that although the Tribunal is bound to consider the primary decision in detail, the Tribunal is also required in merits review to consider all other material evidence and contextual circumstances, in reaching its determination.

49. At the time of his discharge from the Army in May 1997, Mr Barber's impairment was described as "... spinal canal stenosis, L4/5, L5/S1 disc protrusions".. On this basis alone, making no mention of recorded ankle and foot injuries, his disability was rated as 60 percent or more Class A impairment. This rating was later reinforced by a decision of the DFRDBA in June 1998, when it decided the applicant should remain classified as 60 percent Class A disability.

50. Evidence before the Tribunal indicates that the decision to reclassify Mr Barber to 40 percent Class B disability, made on 12 December 2000 was largely based upon the assessment by Dr Jones, orthopaedic surgeon, that Mr Barber's overall incapacity was "moderate" between 30 and 60 percent. There may also have been some presumption that because Mr Barber had just commenced employment as a taxation officer, there existed an ongoing ability to work.

51. It is important to note that although Dr Jones admitted back pain might occur for 2 or 3 days at a time and Mr Barber could not sit for more than about 25 minutes at a time, he stated in later evidence to the Tribunal he had not evaluated Mr Barber's activity over a full day period and was not in a position to make judgments about pain management and associated medication. Dr Jones rated Mr Barber's capacity to undertake appropriate employment as follows:

* Electrical instrument fitter; ability diminished to a large extent (60-100 percent).

* Workshop supervisor (electrical); ability diminished by a large extent (60-100 percent).

* As a driver, diminished by a moderate amount (30-60 percent).

* As a fitness instructor, diminished by a large amount (60-100 percent).

* As a taxation officer diminished by a small amount (10-30 percent).

52. The manner in which these assessments were treated during the DFRDBA review is instructive. Dr Jones' findings were translated as follows in the report dated 12 December 2000:

* Instrument fitter, capacity diminished by 60-100 percent.

* Workshop supervisor, capacity diminished by 60-100 percent.

* Taxation officer, capacity diminished by 10-30 percent.

Mr Barber later queried why the vocational categories of driver and physical instructor had been omitted. In the view of the Tribunal they should have been included, because he possessed qualification and skills in both areas.

53. At a later stage of review (21 September 2001), the Authority affirmed the earlier decision, noting the disability rating for workshop supervisor and electronics technician as "large" (i.e. 60-100 percent), but then subsumed the role of taxation officer into the category of "clerk", regarding it as a more generic term, but rating the incapacity as "small".. This is surprising, given that at the time there was extant evidence Mr Barber was experiencing difficulty in maintaining his taxation officer role and about to leave employment because he could not cope with pain and depression.

54. However it is also necessary to consider other elements of the medical record.

55. In a report dated 18 April 2001, Dr M Davies, General Practitioner, noted that Mr Barber had ceased taking non-steroidal anti-inflammatory drugs because of side effects and in consequence his situation had worsened.

56. On 7 November 2001, Dr C Clifford, psychologist, reported that Mr Barber was depressed, with extreme fatigue, lack of interest in life, finding any social contact hard and had elected to take a redundancy from employment. In her report she stated:

"In my opinion the combination of significant physical injuries, the presence of chronic pain, medication effects and the presence of psychological/psychiatric symptoms would extinguish James Barber's earning capacity."

57. On 20 December 2001, Dr T Hunn, specialist, reported that the applicant's life "was ruled by his neck and lower back symptoms", that he was suffering from depression and currently not able to work because of those symptoms.

58. In a report dated 30 September 2002, Dr C Kenna, consultant in musculoskeletal pain management reported that the applicant was totally incapacitated for the kinds of employment identified for purposes of the Act, including work as a taxation officer. Dr Kenna concluded that Mr Barber was unfit for duties as an electrical instrument fitter, workshop supervisor, heavy vehicle driver or physical education instructor.

59. A report from Ms Batchelor of Huon Physiotherapy dated 11 November 2002 to the Military Compensation and Rehabilitation Service stated that Mr Barber would have fluctuating symptoms and treatment would have to rely upon self-management as the applicant was unable to work full-time, but part-time work might be possible if he had access to regular breaks.

60. In a report dated 25 November 2002. Dr T Rush, general practitioner, stated that the applicant had first presented to her on 19 April 2001, complaining that chronic pain and depression were preventing him coping with full-time employment as a taxation officer. In subsequent evidence to the Tribunal, drawing upon clinical notes of herself and colleague, Dr Chow, covering the period January 2000 onwards, she noted that Mr Barber was lethargic, depressed and undergoing severe bouts, such that many days had to be absent away from work, having used up sick leave.

61. On 7 January 2003, Dr C Clifford, psychologist, reported that although the applicant appeared less depressed and resigned to his fate than at the initial assessment, the combination of chronic pain and adjustment disorder severely limited his earning capacity and really meant he was totally incapacitated for work.

62. Dr I Sale, psychiatrist, reported that he had examined Mr Barber on two occasions on 3 December 2001 and 8 April 2003, summarising the results in a report dated 30 May 2003. Dr Sale noted differences in the applicant's demeanour on these occasions and following the first interview he thought there were no psychiatric reasons precluding work, but in April 2003 he was convinced, at face value, Mr Barber was unable to work in any capacity. He considered it likely no psychiatric symptoms existed at the time of discharge from the Army, but had developed during the applicant's time at the Australian Taxation Office.

63. Having considered all medical evidence in this case the Tribunal is unable to find any persuasive reason why Mr Barber's medical condition was gauged to have improved to low to moderate incapacity (30 to 60 percent, Class B) in December 2000, when he was assessed as Class A incapacity (60 percent or more) until at least June 1998 and the subsequent record appears to be one of ongoing chronic pain, side effects of medication and mental depression to the present day. The Tribunal therefore finds on the balance of probabilities Mr Barber's incapacity was 60 percent or more Class A in December 2000 and thereafter to the present day (sections 30 and 34 of the Act).

64. There remains the issue of what kinds of civil employment a person with the applicant's skills, qualifications and experience might reasonably undertake. During the process of incapacity rating and review, a number of vocational fields have been suggested:

* Electrical instrument fitter

* Workshop supervisor (electronics).

* Heavy Vehicle driver.

* Physical education instructor.

* Clerk.

* Taxation Officer.

* Accountant.

65. There appears to be common ground that Mr Barber's incapacities are of such a nature that ability to work in areas such as electrical instrument fitter, workshop supervisor, vehicle driver and physical education instructor have been severely compromised i.e. there is incapacity to a substantial or large degree. However the Tribunal notes that the applicant was and is entitled to have these fields taken into account in assessing his degree of impairment, and the DFRDBA should have considered the vehicle driver/physical instructor categories in their calculations, which they failed to do.

66. On the other hand the applicant has claimed the DFRDBA was at fault in inserting the category "clerk" and should not have done so because Mr Barber had not been trained as a clerk and would abhor such a role. Here the Tribunal is less persuaded; the DFRDBA appears to have used the term "clerk" in a generic sense and the fact that Mr Barber has a commerce degree would indicate capacity for roles such as clerical duty, taxation officer or perhaps accountant, but in part dependent upon job availability and also on flexible arrangements permitting work with periodic breaks.

67. The issue arises as to whether other kinds of part-time work should be considered. Given Mr Barber's skills, qualification and experience, roles such as works supervisor, office manager or part-time account might be contemplated, but given his medical and psychiatric condition, unlikely to prove feasible unless improved pain management occurs and his morale improves. If recent medical reports are taken at face value, he currently has near incapacity to work.

DECISION

68. Having considered all evidence before it, the Tribunal has decided on the balance of probabilities, and provisions of ss30 and 34 of the Act, the decision made by a delegate of the Defence Force Retirement and Death Benefits Authority on 12 December 2000, reclassifying Mr James Arthur Barber from 60 percent Class A to 40 percent Class B incapacity should be set aside and in substitution therefor Mr James Arthur Barber's incapacity should be rated as 60 percent or more (Class A) from that date.

69. If for any reason Mr Barber's incapacity is to be further assessed at some future date, the kinds of skills, qualifications and experience to be taken into account should include, but not necessarily be limited to the following:

* Electrical instrument fitter

* Workshop supervisor

* Heavy vehicle driver

* Physical education instructor

* Clerk

* Accountant

70. The impairment causing invalidity continues to be:

"spinal canal stenosis, L4/5, L5/S1 disc protrusions."

The Tribunal considers that Mr Barber's injuries to ankles and feet should also be noted, as well as psychiatric condition. In the view of the Tribunal Mr Barber currently possesses very little work prospect, with incapacity probably high in the range 60-100 percent, but the medical evidence is not definitive about complete inability to work.

71. In reaching its conclusions the Tribunal relied upon a number of case authorities including Re Clark and DFRDBA (an unreported decision AAT 28608 of 20 May 1993 cited by the respondent), also Re Thomson and DFRDBA (1987) 6 AAR 424, which requires the Tribunal to take a global view of the applicant's degree of incapacity for civil employment, but to do so by considering each field separately before combining ratings. The Tribunal also notes that the categories of incapacity cited in the Act as A, B and C are very broad, thus assessment is bound to be inexact when various medical practitioners and specialists are involved in giving expert evidence in individual fields.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 8 and 9 October 2003

Date of Decision 19 November 2003

Counsel for the Applicant Mr Roger Baker

Solicitor for the Applicant Baker Tierney and Wilson

Counsel for the Respondent Mr Ben Dube

Solicitor for the Respondent Australian Government Solicitor