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The benefits decision turned on the statutory assessment of his incapacity for civil employment. The respondent initially described the relevant impairment as “recurrent achilles tendonitis of right ankle”. It assessed his incapacity at 20% and classified him in class C in May 1986 (para 8). Following reconsideration, the respondent changed the assessment to 30% and class B from 27 March 1986, while retaining the right-ankle description (para 9). Later reviews maintained class B (para 10).

In November 2002, the respondent again reviewed Metcalfe’s classification. It assessed his incapacity at 15% and moved him to class C from 13 December 2002. On reconsideration, the respondent maintained the reclassification and identified “chef and gaming worker” as the relevant kinds of employment (para 11). Metcalfe sought Tribunal review.

The Tribunal heard evidence from Metcalfe, doctors, a former commanding officer, and a former casino colleague. The central questions were what impairment had caused the incapacity for which Metcalfe was discharged, what categories of civil employment were relevant, and how substantially his impairment diminished his capacity for those categories (paras 2, 12, 27).

The decision set aside the reclassification and remitted the matter with a direction that Metcalfe receive class B benefits from 13 December 2002. The Tribunal’s overall assessment was 40% to 50%. It added that even without the category of police, emergency-services or security work, its assessment would be 30% to 40%, still within class B (para 90).

Why the court decided this way

The Tribunal’s statutory framework came from ss 26, 30 and 34 of the Defence Force Retirement and Death Benefits Act 1973. Section 26 provided for invalidity benefits where a contributing member was retired for physical incapacity. Section 30 established three classifications: class C for incapacity below 30%, class B for at least 30% but below 60%, and class A for 60% or more (paras 4–5). Section 34 authorised reclassification and confined the assessment to the matters in s 34(1A): the recipient’s skills and experience, the kinds of employment a person with those attributes might reasonably undertake, and the effect of prescribed impairment on capacity for that work (para 6). The parties agreed there were no additional prescribed matters under s 34(1A)(d) (para 12).

First, the Tribunal identified Metcalfe’s skills and experience. These included Army cookery and kitchen-management training, work in ration stores involving clerical tasks, and his experience in gaming and casino administration. The Tribunal also accepted that his SAS training and qualifications had given him relevant physical, organisational and vocational capabilities (paras 14–18). It therefore did not confine the assessment to the respondent’s recent description of “chef and gaming worker”.

Second, the Tribunal considered employment categories, rather than only particular jobs. It included chef or catering manager, general clerical and administrative duties, and gaming work comparable to dealer or inspector. It excluded pit boss and shift manager work as categories Metcalfe might reasonably undertake, given the evidence about the experience and qualifications those roles required (paras 20–26). It also found that former members of Metcalfe’s regiment commonly pursued police, emergency-services or security work, and that their military experience equipped them for such work (para 26).

Third, it determined what impairment had caused the incapacity for which Metcalfe was discharged. The records were not uniform. One January 1986 examination recorded recurrent Achilles tendonitis on the right, while other material recorded symptoms in both heels and tendons (paras 40–47). The applicant’s evidence was that both legs had problems, with symptoms varying over time. His former commanding officer also understood that both legs contributed to his inability to wear Army footwear, work in the kitchen and undertake physical activity (paras 48–51). Dr Fitch described the condition as bilateral and explained that fluctuating symptoms could make one leg appear less troublesome at a particular examination (paras 53–56).

The Tribunal accepted that evidence. It found that the left and right leg impairments were both present and productive of incapacity when Metcalfe was discharged. In its view, the final discharge documents did not accurately reflect the conclusions reached about the reasons for discharge (paras 57–58). Having found that both legs formed the prescribed impairment under s 34(1B)(a), it did not decide whether the left-leg impairment was causally connected to the right-leg impairment under s 34(1B)(b) (para 59).

Finally, the Tribunal assessed the effect of the bilateral impairment on each employment category. It considered that Metcalfe could not undertake the relevant work on a regular full-time basis, and that his past ability to work at a casino depended on flexibility in hours, duties and time off (paras 61–64, 85–86). It preferred Dr Fitch’s evidence where it differed from Dr Bell’s, including because Dr Bell’s opinion had been influenced by an expectation of possible improvement and because he acknowledged limited experience assessing kitchen work (para 86).

The resulting category assessments varied. The Tribunal placed incapacity for cooking or chef work in the 30% to 60% range, kitchen management at 20% to 30%, dealing at 30% to 50%, and coordinator or inspector work at 10% to 20% (para 87). It assessed mainly sedentary general clerical work at about 10% to 15% (para 88), but found incapacity above 60% for police, emergency-services or security work involving substantial physical activity (para 89). It then made an overall value judgment, rather than treating the figures as a mathematical average (paras 84, 90).

Before and after state of the law

The judgment does not describe a change to the governing legislation. It applies ss 26, 30 and 34 of the Act to a particular review. Section 30’s classification thresholds were central: class B began at 30% and ended below 60% (para 5). Section 34(1A) limited the matters relevant to determining incapacity, while s 34(1B) defined which impairments could be considered (paras 6–7).

The Tribunal relied on existing decisions to explain how it applied those provisions. It used Defence Force Retirement and Death Benefits Authority v House for the approach to relevant skills and experience, the hypothetical employment categories, and the character of the percentage assessment (paras 13, 19, 84). It referred to Re Greer for identifying the incapacity on which the person was actually retired, rather than the incapacity on which they could or should have been retired (paras 27, 30). It considered Military Superannuation and Benefits Board No 1 v Stanger in relation to identifying the impairment causing the incapacity, including the possibility that later information may clarify an initial description (para 31).

The practical before-and-after change in this case was the applicant’s classification. Before the Tribunal decision, the respondent’s reclassification placed Metcalfe in class C from 13 December 2002. After the decision, that reclassification was set aside and the matter was remitted with a direction for class B benefits from that date (decision; para 90).

The decision’s reasoning is specific to the evidence and statutory test described. It does not say that bilateral conditions must always be treated together, or that former SAS service invariably makes a person capable of police or security employment. Its findings depended on the evidence concerning Metcalfe’s particular impairment, skills, experience and employment prospects.

Key passages with plain-English translation

At para 27, the Tribunal said it needed to determine three matters: the incapacity for which Metcalfe was retired, the impairment that caused that incapacity, and the degree to which that impairment reduced his capacity for relevant civil employment. In plain English, the assessment involved a sequence: identify the reason for discharge, identify the relevant condition, then measure its effect against suitable employment categories.

At para 58, the Tribunal found that impairments in both legs together caused the incapacity that resulted in discharge. This was important because the original classification had described the impairment as right-sided. The Tribunal did not treat that description as conclusive when the broader medical and oral evidence supported a bilateral condition.

At para 19, drawing on House, the Tribunal treated the employment question as one about what a hypothetical person with the applicant’s skills and experience might reasonably undertake. In plain English, the inquiry was broader than asking what Metcalfe actually did after discharge or whether a particular employer had hired him.

At para 84, the Tribunal described the percentage assessment as “a value judgement”, not a mathematical calculation. That passage explains why it did not simply average the percentages assigned to individual occupations. It considered the nature and range of employment, and the practical effect of reduced capacity, including restrictions on regular full-time work.

At para 90, the Tribunal found incapacity overall in the 40% to 50% range. Its alternative assessment, if the physical employment categories were excluded, was 30% to 40%. Both ranges met the class B threshold. The operative result was to set aside the class C decision and remit the matter with a direction for class B benefits.

What fact patterns trigger this precedent

The reasoning is most relevant to reviews under s 34 where a recipient’s classification depends on identifying the original impairment and assessing its present effect on civil employment. In particular, the decision addresses a situation in which the administrative record describes a condition narrowly, but other contemporaneous and later evidence may indicate a broader or bilateral impairment.

The judgment also offers an approach where symptoms fluctuate. Metcalfe’s condition could appear worse on one side at a particular time, but the Tribunal accepted evidence that both legs had been affected over the relevant period (paras 48–58). That does not establish that fluctuating symptoms will always justify a bilateral finding. The Tribunal relied on the specific medical history, examination records, oral testimony and evidence about the circumstances of discharge.

The employment analysis may be relevant where the respondent identifies only the applicant’s most recent or obvious occupations, but the evidence suggests other categories reasonably connected to the recipient’s skills and experience. Here, the Tribunal considered Army cooking and management experience, gaming work, clerical duties, and former-regiment career pathways (paras 14–26).

The decision is also relevant where actual post-discharge work may not represent ordinary full-time capacity. Metcalfe worked at the casino, but the Tribunal considered evidence that his duties and hours were flexible, and that he moved away from dealing work because of standing difficulties (paras 61–64, 85). It treated those circumstances as relevant to the assessment rather than assuming that past employment demonstrated capacity for regular work across the category.

How later courts have treated it

The supplied judgment contains no decisions made after 25 November 2004 and provides no information about how later courts or tribunals treated Metcalfe. It is therefore not possible, from this source alone, to state whether later decisions followed, distinguished or otherwise considered it.

The authorities the Tribunal itself discussed pre-date Metcalfe. House was used in relation to skills, employment categories and the value-judgment approach (paras 13, 19, 84). Greer was used for identifying the incapacity on which the person was actually retired (paras 27, 30). Stanger was considered concerning the identification and description of an impairment (para 31). Thomson was referred to through the passage quoted from House about assessing percentage incapacity (para 84).

The judgment thus records how the Tribunal used those earlier authorities, but it does not establish any later treatment of Metcalfe itself. Any assessment of its subsequent reception would require later judgments or other legal sources not included in the supplied material.

Still-open questions

One question was expressly left undecided. The respondent raised whether, if the original impairment were confined to the right leg, the left-leg condition was “causally connected” to it under s 34(1B)(b). Because the Tribunal found that both legs were part of the impairment causing discharge under s 34(1B)(a), it said it was unnecessary to decide the alternative issue (para 59). The judgment therefore does not resolve that question on its facts.

The Tribunal’s treatment of police, emergency-services and security work also depended on its assessment of the evidence. It inferred that incapacity increased with the physical demands of employment and found incapacity above 60% in those categories, despite no direct medical-witness evidence about them (para 89). It then stated that, even if it were wrong to include those categories, the remaining assessment still placed Metcalfe in class B (para 90). The judgment does not set out a general method for deciding when a category supported by vocational evidence but not direct medical evidence should be included.

The judgment also provides no general formula for combining different category assessments into an overall percentage. It adopts a value judgment and gives the figures for the categories it considered, but does not prescribe a weighting calculation (paras 84, 87–90). The outcome depended on the Tribunal’s evaluation of this evidence and the statutory factors.

Finally, the judgment does not describe later changes to the legislation or subsequent treatment of its reasoning. Those matters cannot be determined from the judgment text provided.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.

Document T142 contains descriptions of the duties of gaming workers, specifically dealers, table supervisors and pit bosses. Ms Cope said that the normal progression was to move from a dealer to a supervisor (also referred to as an inspector) and then on to the pit boss classification. A dealer is required to stand at tables to carry out the duties for periods of about one hour before a break. An inspector is responsible for allocating and supervising the work of dealers and generally oversee the operations of several tables, and resolving any disputes. Although he was at one stage classified as an inspector the applicant never performed the duties of such a position. He was given that title only because there was no other title that described his duties and the casino wanted to give him a pay rise. An inspector is required to stand for periods of about 1 hour at a time but can walk around the tables. Inspectors are required to stand-in as dealers on occasions.

Ms Cope said that a pit boss' responsibilities include such things as preparing staff rosters, entering data into computer systems and resolving disputes for the whole pit area. It is not a particularly physical job apart from walking around the pit. About 80% of the pit boss' time would be spent on his or her feet, spending about 11/2 hours in the pit followed by a break of 30 minutes. At no time did the applicant ever perform any of the duties of a pit boss. She said that he would not be qualified to obtain such a position because it is a requirement (by government regulation) that pit bosses have at least 5 years experience and must have experience dealing all of the games conducted at the casino.

Ms Cope said that the position of shift manager, which is her present position, is the position above pit boss and is responsible for all the operations of all the pits in a casino in a particular shift, but also includes responsibility for the entire facilities at the casino and the adjacent hotel for the period of the shift. The shift manager is responsible for all rosters, all financial figures and the resolution of staff and patron problems.

Having regard to all of the above, I consider that at the relevant time, the hypothetical person with the skills, qualifications and experience that the applicant had as described above might reasonably have been expected to undertake employment as a chef or catering manager, clerical and administrative duties of a general nature, and as a gaming worker - but in the latter case work akin to a dealer or supervisor/inspector rather than a pit boss or shift manager. However, in my opinion the evidence establishes that the applicant also had vocational training and skills in defence force operations that qualified him to be a regular trooper in an elite regiment and the physical attributes to undertake such work. That is vocational experience that, in my opinion (and so I find) would make it reasonable for a person in the applicant's position to undertake a category of employment that includes occupations such as police officer, emergency services worker or security officer. I accept the evidence of Colonel Lewis that that was a category of employment often pursued by ex members of the particular regiment and one for which those personnel were well equipped, mentally and physically, and having regard to the types of activities they undertook in the regiment.

The second matter to be determined is what was the impairment that caused the applicant's physical incapacity. I have noted above that when he was first classified under s30 of the Act in 1986 the applicant questioned the description of the impairment that had been adopted by the respondent at that time, namely "recurrent Achilles tendonitis of right ankle". The applicant continued to assert to the respondent over the succeeding years that he had been discharged from the Army because of problems in both ankles, pointing to the fact that as early as 1980, when he was still serving in the Army, liability had been accepted under the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act") in respect of "left retro calcaneal bursitis" arising out the injury sustained in September 1977 (T7) and that at the same time a repatriation board allowed his claim for incapacity arising from the same impairment - but concluded that at that time the resulting incapacity was not sufficient to justify the payment of a disability pension (T8).

In Re Greer (above) at [33] Deputy President Forgie said in relation to the reasons for a person's retirement on medical grounds that:

In July 1985 the applicant was referred to Dr Gilmour in respect of what was described as a "flare up of right Achilles tendonitis". Dr Gilmour reported that the applicant's left Achilles tendon was "not giving him any trouble" at that time but there was "a lot of pain" on the right side. Dr Gilmour noted that the condition was not affecting the applicant's work, but expressed the opinion that the applicant would have to limit his physical activity for about a year, and that he will have problems wearing boots.

In September 1985 in a medical examination conducted as part of a disability pension review, the applicant reported that his right heel was worse than his left but the pain was not present all the time. The doctor who conducted the examination recorded that the right heel was tender and swollen over the Achilles tendon and that the left heel was tender over a part of the Achilles tendon. Based on that assessment, the Repatriation Commission maintained the applicant's disability pension at 30% of the general rate.

In January 1986 the applicant underwent a final medical board to assess his capacity to remain in the army. Exhibits A4 and T50 are the examination records prepared by Dr D W Fleming, who was one of the medical officers who examined the applicant on 10 January 1986 and 23 January 1986 respectively. Exhibit A4, relating to the assessment on 10 January, recorded pain in both Achilles tendons and heels and an inability to wear boots for one year. On examination, the right heel was found to have a thickening and tenderness over the lower tendon and insertion into the heel. For the left heel, there was no obvious thickening but there was a slight tenderness. The diagnosis of disabilities was stated as "recurrent Achilles tendonitis" and the percentage of incapacity was stated as 30%.

Document T50, relating to the examination on 23 January 1986, recorded a similar history of tendonitis and calcaneal bursitis on both sides, and noted "further deterioration with increase from 30% to 40% disability". The examination record for the right heel was similar for the Exhibit A4, and for the left heel the record was "slight tenderness over insertion". The diagnosis of disabilities was stated to be "recurrent Achilles tendonitis (R)" and the percentage incapacity was stated as 40%.

At the 10 January 1986 examination, the applicant was not found to be medically unfit for further service by the doctors who conducted the examination, but a more senior Army medical officer, who subsequently reviewed the examination record, classified the applicant as "medically unfit (tentative)". At the 23 January 1986 examination the applicant was found to be medically unfit for further service.

The applicant said in his oral evidence that the reason there were two examinations approximately 2 weeks' apart was that he had received a cortisone injection into his left ankle at about the time of the 10 January examination and, accordingly, the examination did not give a true reflection of his condition at that time - and so he was called back to a further examination.

Dr Fleming gave oral evidence that he was one of the doctors who conducted the two examinations. His recollection was that the second examination was needed because he had wrongly classified the applicant at the first examination under the Army's "Pulheems" assessment system and that the senior Army medical officer had subsequently insisted that the applicant be given a higher rating of disability because of his inability to wear army issue boots.

Dr Fleming said that at the time of the examinations he was aware of the applicant's history of trouble with both Achilles tendons and heels, although he understood at the time the left side was causing significantly less problems than the right side.

As well as completing the examination records referred to above, Dr Fleming prepared what is now document T52, which is a report of the final medical board dated 23 January 1986. In that document the history of problems and operations on both heels and Achilles tendons are referred to, as is persistent pain and tenderness on the right side. The diagnosis referred to is said to be "recurrent Achilles tendonitis" and the cause of that disability is described as "recurrent injuries associated with organised sport".

Dr Fleming agreed that the reference to "recurrent Achilles tendonitis" in T52 and Exhibit A4 may have referred to both of the applicant's lower limbs rather than just the right, notwithstanding that T50 referred specifically to the recurrent Achilles tendonitis on the right side.

The applicant said in his oral evidence that he had been told at the time that he was being discharged from the Army because of his leg problems, and there was never any suggestion made to him by anybody in the Army that it was only in respect of the right leg. The applicant confirmed that in the late 1970s it was the left leg that was the main problem and that the right had become the main problem during the early 1980s. Thereafter the problems had alternated as the condition flared up from time to time.

As far as he was concerned, he always had some degree of pain and soreness in both legs but may well have said on occasions that one was not causing any trouble - by which he meant that although there was a degree of residual pain in the leg, it was causing much less trouble at the time than the other leg. The applicant said that the culture of the Army generally, and his regiment specifically, was to downplay any physical impediments.

Colonel Lewis gave oral evidence that in the period from 1984 to 1986, although he did not see medical reports concerning the applicant, he was aware that the applicant was having fitness problems with his legs from discussions he had with the applicant and Army medical staff. The applicant's immediate supervisor had frequently asked Colonel Lewis' approval for the applicant to work in non-standard footwear and Colonel Lewis said that he often observed the applicant wearing non-standard footwear on one foot or the other. Because of his respect for the applicant's abilities, Colonel Lewis said that he had approved the applicant working out of the kitchen for extended periods of time and he had made representations to have the applicant exempted from undertaking certain physical courses that were necessary for him to gain promotion,

Colonel Lewis said that in 1985 and the beginning of 1986 the applicant was "struggling to survive" in the regiment and he would have been under considerable pressure to understate the extent of any injury or incapacity that he had. At the time of the applicant's final medical board, Colonel Lewis had had meetings with regimental medical staff about the applicant's conditions. He was definitely not under the impression that one of the applicant's legs was presenting no problems and that the discharge was due only to the other leg. As far as he was concerned the applicant could not wear Army issue footwear, he could not spend long hours working in the kitchen, and he could not undertake other physical activity. This was due, Colonel Lewis believed, to both the appicant's legs and so far as he was aware it was because of both legs that the applicant was discharged as medically unfit.

Dr Fitch is a consultant sports physician and was the treating physician of the applicant between 1979 and 1981, together with his orthopaedic surgical colleagues at Royal Perth Hospital. In 1981 the applicant had been referred to Dr Gilmour, who was a specialist in the surgical management of Achilles tendons conditions.

In his oral evidence Dr Fitch said that when he first saw the applicant it was the left leg that was causing the trouble but, as commonly occurs, bilateral tendonopathy developed. In a report in January 2003 (T105) Dr Fitch expressed the opinion that the correct description of the applicant's condition both at that time and in 1986 was "bilateral (left greater than right) Achilles tendonopathy". The term "tendonitis" was used in 1986 and until recent years, but it is now known that the pathology of Achilles tendon conditions is degenerative in nature rather than inflammatory and hence tendonopathy is a more correct description of the applicant's condition - both in 1986 and at present.

In a subsequent report prepared in June 2003 (T135) Dr Fitch described a further condition of the applicant, namely "insertional tendoperiostel enthesopathy" - which involves the insertion of the Achilles tendon into the heel. Dr Gilmour had removed the subcutaneous bursae in both heels because of intractable pain and incapacity. This is not a procedure that is routinely performed at the present time. Enthesopathy is a condition that develops where tendons insert into bones. Because of the poor blood supply to these junctions, such conditions tend to be very difficult to manage and are often chronic. In his January 2003 report Dr Fitch said that this condition had not been mentioned by Dr Fleming in the applicant's final medical report papers, but it was a major aspect of the applicant's incapacity in 1979 to 1986 and remained so at the present time.

In his oral evidence Dr Fitch said conditions of a degenerative nature will not progress evenly and that a condition such as that suffered by the applicant would have good and bad periods - which would account for the intermittent flare ups that the applicant experienced. It was quite normal for a person who was limiting his activities because of pain in one limb to not put any stress on the other limb and hence it might be said that the other limb was not causing any particular problems at that time.

Having regard to the above evidence, which I accept, I am satisfied that, although at the time of his final medical board in early 1986 the applicant was experiencing more problems with his right ankle and Achilles tendon than on the left, throughout the period from 1977 to 1986 the applicant had experienced very considerable problems with both limbs, although the symptoms fluctuated from time to time. I accept the evidence of the applicant, Colonel Lewis and Dr Fitch that there were problems with both legs throughout the period and that it could not be said that it was only the right leg that was causing the applicant problems in 1986.

Given the discrepancies between the documentation relating to the various medical examinations that the applicant underwent in January 1986 it is difficult to draw firm conclusions about what Dr Fleming and the other medical practitioners involved at the time thought was the precise impairment that was preventing the applicant wear Army issue boots, run, and work in the kitchens. On balance, I consider that the fact that Exhibit A4 can be understood to be referring to both limbs and the fact that 2 weeks later Dr Fleming considered the applicant's disability to have increased from 30% to 40%, justifies a conclusion that at the time the applicant's problems with both legs were regarded as relevant and the causes of his discharge - even though document T50 refers specifically to the right limb only.

My conclusion is that the impairments referred to in both the applicant's left and right legs were present at the time of his discharge and they were both productive of incapacity. The final discharge documents prepared did not, in my opinion, accurately reflect the conclusions reached as the reason for the discharge. Accordingly, I find that the impairments to the applicant's left and right legs were together the cause of the incapacity that resulted in the applicant being discharged, and it is the impairment in both legs that represents the "prescribed physical impairment" referred to in s 34(1)(B)(a) of the Act.

An issue was raised at the hearing as to whether, on the assumption that the impairment that was the cause of the applicant's discharge from the Army was limited to his right leg, whether the condition of his left leg was a physical impairment that was "causally connected" with the impairment in the right leg for the purposes of s 34(1B)(b) of the Act. In view of my findings above that the prescribed impairment was in both legs, it is unnecessary for me to consider that issue further.

The third matter that I must determine is the degree to which the relevant physical impairment has diminished the applicant's capacity to undertake the kinds of civil employment that I have found to be applicable to the applicant in para 26 above.

The applicant's oral evidence was that he believed that he could not work as a chef or cook at the present time. Apart from the fact that he had not worked in the kitchen for about 20 years and was no longer familiar with modern kitchen equipment, he considered that he would not be able to wear proper footwear - which is important because of the presence of hot water and oil in the kitchen environment - and he did not believe that he would be able to handle the standing on hard floors for shifts of up to 6 or 8 hours. He always has pain present, although it fluctuates from one leg to the other over time. If he tries to stand for more than four hours he experiences a great deal of pain and it can take weeks to be rid of it. He qualified as a swimming instructor in 2003 and was able to work 2-3 hours a day - but on occasions tried to work for 4 hours at a time and suffered in the following days. He found that the buoyancy of the water helped if he was standing in water, but cold water made his heels ache.

In relation to his work at the casino, the applicant said that he had found the duties of a dealer difficult because of the standing that was involved, but he managed by simply putting up with the discomfort. Some days were better than others and on one occasion he had had to leave work when his leg became too painful. However, after some months in the job his duties changed in the way described above and he was able to be very flexible in his hours at work and the extent to which he was on his feet. Initially he had combined some dealing activities with these other duties, but after about 12 months he stopped being a dealer and worked in the other duties only. He managed the other duties because of the flexibility of hours and the ability to take days off if he needed to. His duties at the casino immediately prior to his retrenchment involved a mixture of office work (mainly sitting at a computer) and more active movement around the casino coordinating the various matters that he was responsible for.

Ms Cope's oral evidence in relation to the applicant's capacity to undertake the duties that he was performing prior to his retrenchment was that, although the applicant was highly regarded by the casino as an employee, she thought it was most unlikely that he would pass the casino's present medical testing requirements for new employees.

Ms Cope said that when the applicant worked as a dealer, which involved standing for periods of about one hour, it was apparent after a matter of a few months that he was having difficulties. When the applicant began working in the administrative job that he held he would be seen limping around the casino at times. He had no fixed hours and frequently arrived at work very early in the morning to get his work done. She believed that he could not have done the job that he did perform, or any of the other jobs at the casino, on an 8 hour shift basis - although he was capable of doing the jobs for shorter periods.

As has been noted above, the respondent's decision to reclassify the applicant to Class C was made on the basis of a report from Dr Bell of September 2002 (T94). In that report Dr Bell reviewed the applicant's history and noted that his current condition was of ongoing aches in both heels, somewhat worse on the left side. At the time the applicant continued to work at the casino. Dr Bell concluded that the applicant's relevant condition was bilateral Achilles tendonitis that was slightly worse on the left, with ongoing mild grade chronic inflammation in both Achilles tendons. Dr Bell considered that as a cook or kitchen manager the applicant was capable of most of the activities involved, including bending and lifting weights and lifting above shoulder height - but that his problem was with standing, and it would be better if the applicant could walk intermittently and have the ability to sit and stand at will.

Dr Bell concluded that the applicant's ability to work as a cook or a kitchen manager had been diminished by 10% to less than 30%, and his ability to work as a gaming worker had been diminished by less than 10%. His overall assessment, giving an equal weighting for each kind of employment, was that the applicant's ability had been diminished by 10% to less than 30%.

Dr Bell expressed a hope that the applicant's problems will improve rather than worsen with the passage of time, but because the problem had been ongoing for around 25 years it was unlikely that his Achilles tendon problem would improve significantly in the near future.

In January 2003 the applicant obtained a medical report from Dr Fitch (T105). As noted above, Dr Fitch concluded that the correct description of the applicant's then condition was as set out in para [53] above. He noted that the applicant's work at the casino allowed him to sit 70% of the time and walk when necessary, and he thought that the applicant was unsuited to work as a chef because that would require standing and walking throughout all shifts. Because of his heels the applicant is severely limited in his capacity to walk, to stand and to perform hard physical labour. Dr Fitch noted that the applicant's impairment has not changed since his discharge from the Army and that he was, if anything, less mobile than he had been at the time of discharge despite his attempts to maintain fitness by swimming. Dr Fitch considered that Dr Fleming's assessment of 40% incapacity was appropriate in 1986 and it remained applicable in 2003. Dr Fitch thought there was no prospect whatsoever of the applicant's heels improving, that the applicant was physically very limited, and was in "urgent need of retraining for an alternative sedentary position".

In June 2003 Dr Fitch provided a further report at the respondent's request. He repeated his opinion about the correct description of the applicant's conditions, noting that the pathology in chronic tendonopathies is degenerative and not inflammatory. Dr Fitch expressed the opinion that although there may be a few positions for a cook that do allow being seated for a major portion of the day, these would be in highly specialised areas. The applicant was unable to work as a cook in 1986 and certainly could not do so in 2003. Dr Fitch assessed the applicant's incapacity to obtain full time employment as a cook in the 30 - 60% range.

Dr Fitch thought a position as a kitchen manager may be more suitable - although he thought it was impractical for a person who has not worked as a cook for 17 years to apply for such a position. Depending upon the physical requirements of the position, the applicant's capacity to work as a kitchen manager was diminished by 10-30%.

Dr Fitch believed that the applicant would have great difficulty functioning as a gaming operator because of the necessity to stand throughout the shift and would have a 10-30% reduction in capacity for that employment. As a gaming coordinator, although such positions are rare, he thought the applicant would have a less than 10% reduction in capacity to perform that work.

In T135 Dr Fitch also addressed the impact of including the condition in the applicant's left leg in the assessment of inability for employment and expressed the view that inclusion of the left Achilles pathology resulted in the applicant's capacity being diminished further. As a kitchen manager and as a gaming operator his impairment would increase to the 30-60% range, as a gaming coordinator his impairment would remain essentially unchanged at less than 10%, and as a cook his impairment would increase to the 60-100% range.

The respondent also obtained reports from another orthopaedic surgeon, Dr Desmond Williams. In a report provided in January 2003 (Exhibit R3) Dr Williams recorded the history of the applicant's conditions, noting the bilateral and chronic nature of the applicant's problems.

Dr Williams referred to the reports provided by Drs Bell and Fitch and also to a report made in August 1993 by another orthopaedic surgeon, Dr Fahrer (T79) - who had assessed the applicant's capacity to undertake employment as a cook, kitchen manager and croupier. Dr Fahrer thought the applicant's capacity to work as a cook was reduced and that, if the duties of a kitchen manager involved work standing up and supervising what is happening in a kitchen, then the applicant would not be able to cope with the employment. So far as a croupier was concerned Dr Fahrer noted the applicant was able to do that work because of the casual and variable hours basis upon which he was employed, and that this was the ideal type of employment for the applicant. He thought that at that stage the applicant would not be able to cope with full time regular employment, even as a croupier.

Dr Williams noted the opinions of Dr Bell and Dr Fitch and expressed the opinion that as at 13 December 2002 the applicant's disability was in the 30% - 60% range in the areas of employment "... as a chef or kitchen supervisor or in a gaming situation, be it manager or croupier with the requirements being that in the gaming area he requires sedentary work areas avoiding prolonged standing". Dr Williams was not called by either party to give oral evidence at the hearing.

In his oral evidence Dr Fitch confirmed the opinions he had expressed about the applicant's capacity for work as contained in his written reports. He said that for a job that involves strenuous physical activity the applicant would be almost 100% incapacitated, whereas for a job that was mainly sedentary his incapacity would be around 10%. He said that for work as a chef the incapacity would be in the 30 - 60% range but might be towards the lower range of that range if the job permitted a considerable amount of sitting and an ability to move around at will. However, Dr Fitch repeated that he did not know of any chef job that permitted a great deal of sitting.

Dr Fitch said that the nature of Achilles tendonopathy was that it would fluctuate in the severity of its symptoms and because of the degenerative nature of that pathology it would not deteriorate at a regular rate.

In relation to the views expressed by Dr Bell, Dr Fitch said that he disagreed with a number of aspects of Dr Bell's views. He disagreed with the use of the term "tendonitis" because that term reflected an inflammatory condition, whereas in his view the more acceptable description of the applicant's condition was tendonopathy - which focussed on the degenerative nature of the condition. Secondly, Dr Fitch said that he thought Dr Bell had concentrated on the applicant's tendon problems and had not paid sufficient regard to the problems associated with the removal of the applicant's bursae and the tendon insertion area. He thought Dr Bell's assessment of incapacity was in the low side and thought that Dr Bell had implied that the applicant had improved significantly since 1986, whereas in Dr Fitch's opinion that was not true and there was unlikely to be future improvement because of the degenerative nature of the condition.

In his oral evidence Dr Bell said that his assessment in September 2002 as set out in T94 reflected his assessment of the applicant's incapacity for both legs. Although he thought it was possible to try to apportion the incapacity, Dr Bell said that he thought the applicant's incapacity on either side would give the disability that he had assessed.

In relation to work as a cook or kitchen manager Dr Bell said that he did not expect these positions to involve walking great distances and he thought the applicant's ability to stand for periods of 20 - 30 minutes at a time would be sufficient. However, Dr Bell said that he did not have personal experience assessing kitchen work but he had seen videos involving kitchen hands and cook functions and though that there would be some ability to sit to carry out the work.

In relation to Dr Fitch's comments regarding tendonopathy, Dr Bell said that he accepted Dr Fitch's view that tendonopathy was the correct description and said that inflammation may be significant in relation to the possibility of improvement, but there is likely to be degeneration when the condition is chronic - which was the case with the applicant.

Dr Bell said that his opinion about the applicant's incapacity was influenced by his view that the applicant had capacity to improve because he though tendon inflammation has the capacity to improve, even though he was aware that the history of the applicant's condition showed little improvement over the years.

Dr Bell said that his assessment in the range of 10% to less than 30% was intended to apply not only to the work of a chef but also to that of a kitchen manager, general employment and overall work. However, he said that the applicant's condition was at the top end of that range and he would not disagree with an assessment that was above the 30% mark. He said that the 30% - 60% range is a very large one and he would not argue with an assessment of about 35% for the applicant.

The issue of how the determination of the percentage of capacity is to be assessed was considered by the Full Federal Court in House (supra) at [15] where the Court referred to the comments of Davies J in Re Thomson and Defence Force Retirement and Death Benefits Authority (1987) 6 AAR 424 at 433 that:

As a clerical or administrative worker of a general nature much depends on the type of work that might be involved. I agree with the contentions of the respondent that this is a wide category of employment and will range from work that is principally desk based - which the applicant would be capable of doing with little incapacity - through to types of employment that would require considerable degrees of mobility. On the basis that such employment could be seen as mainly sedentary, I consider the applicant's incapacity to in the order of 10% to 15%.

Although no direct evidence was given by any of the medical witnesses regarding the category of employment of police officer, emergency services worker or security officer, I consider that I can infer from the evidence of Dr Fitch and Dr Bell that the applicant's incapacity was directly proportional to the degree of physical activity involved in a particular class of employment. Given the applicant's inability to remain a soldier because of his disability, his inability to run or stand for prolonged periods, and his continuing inability to wear boots, I consider that he would have little capacity to undertake employment of these kinds. He would have a considerably lesser capacity to perform these types of employment than he would to be a cook and hence I consider that his incapacity would be in excess of 60%.

Having regard to the varying degrees of incapacity referred to above, and bearing in mind that this is not a mathematical calculation but is, rather, a value judgement, I consider that overall the applicant's incapacity for the types of civil employment referred to above as at 13 December 2002 to be in the range of 40% to 50% and that his classification for the purposes of s 30 and s 34 of the Act was class B. If I were to be wrong in having regard to the category of employment of police officer, emergency services worker or security officer then I would assess the applicant's incapacity for the other types of civil employment as being, overall, in the range of 30% to 40% and his classification would remain class B. Accordingly, the decision made on 12 November 2002 to reclassify the application from class B to class C is set aside and the matter is remitted to the respondent with a direction that the application is entitled to receive invalidity benefits on the basis of a class B classification.