Atieh and Department of Family and Community Services

[2002] AATA 570

DECISION AND REASONS FOR DECISION [2002] AATA 570

ADMINISTRATIVE APPEALS TRIBUNAL        Nº W2002/84
GENERAL ADMINISTRATIVE DIVISION
  Re:         MUSTAFA MAHMOUD ATIEH

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             10 July 2002
Place:            Perth

Decision:For reasons given orally at the hearing, the Tribunal affirms the decision under review. 

…….…(sgd G. D. Friedman) ……..

Member

1. SOCIAL SECURITY - disability support pension - continuing inability to work - educational or vocational training

Social Security Act 1991 s94(1), (2), (3) and (5)

REASONS FOR DECISION

10 July 2002  G.D. Friedman, Member

1. This is an application by Mustafa Mahmoud Atieh (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 6 February 2002, which affirmed a decision of Centrelink dated 26 September 2001.  In the Centrelink decision an authorised review officer affirmed a decision to refuse the applicant's claim for disability support pension because he did not have a continuing inability to work.

2. At the hearing of this matter on 10 July 2002 the applicant represented himself and Ms K. Hackney, advocate with Centrelink, represented the respondent.
   BACKGROUND

3. On 11 June 2001 the applicant applied for disability support pension.  Following a medical assessment Centrelink refused his claim on 14 June 2001 because he did not have a continuing inability to work.  The applicant submitted additional medical reports, and a further assessment was carried out.  On 26 September 2001 Centrelink decided that the applicant did not have an impairment rating of at least 20 points.  On 28 December 2001 an authorised review officer affirmed the decision and the applicant sought review by the SSAT.  Following the decision of the SSAT the applicant on 13 March 2002 lodged an application with the Tribunal for review of the decision by the SSAT.    
   EVIDENCE

4. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T26), together with one exhibit (Exhibit A1) tendered by the applicant.   

5. The applicant gave oral evidence and told the Tribunal that he suffered an injury to his right arm in October 1998 when he was attacked whilst working in a takeaway food shop.  He stated that he received a compensation settlement and he purchased a van to be used for selling food, but council restrictions have ended his business aspirations at present.  He said that he is negotiating with the council for the restoration of his licence, and that if successful he will operate the business, or another business.  He stated that since the attack he has not been confident in dealing with people and has sought psychological counselling.  He also described constant pain in his arm, particularly in cold weather and at night.  The applicant stated that he has also suffered from anxiety and depression but has discontinued taking medication because of side-effects.

6. The applicant said that he wished to work in order to support his family, and enrolled in a Certificate IV course in fine art at Central TAFE in first semester 2002.  He said that despite some difficulties he completed the semester and managed to pass most subjects, but he has not re-enrolled and does not intend to continue the course.  He referred to a report dated 16 November 2001 from Dr S. Aviles, his treating doctor, who stated that the pain in his right forearm is a long-term condition.  She indicated that the applicant could resume part-time work for at least eight hours per week within six months and could return to study for at least eight hours per week within six months.

7. Mr G. Burton, clinical psychologist, stated in a report dated 18 September 2001 that he did not consider the applicant to be fit for full-time work in the open market due to his inability to tolerate stress or frustration.  However he considered that the applicant would be able to return to full-time work within 12 to 24 months.  Dr C. Quadros, medical officer with Health Services Australia (HSA), concluded in a report dated 18 September 2001 that the applicant would be able to resume full-time employment in 12 to 24 months.  Dr M. Nicholas, general practitioner, stated in a report dated 3 July 2001 that the pain in the applicant's right forearm would prevent him from working either full-time or part-time or study for at least 15 hours per week, for more than two years.

8. Dr Aviles prepared a further report on 24 June 2002 in which she stated that the applicant's condition is long-term and constant, and the applicant is unlikely to be able to return to any kind of work part-time work for more than two years.  In oral evidence Dr Aviles told the Tribunal that the applicant's condition does not appear to have changed since her earlier reports, and that her conclusion about the inability to work was based on comments by the applicant and not on a medical assessment.
   CONSIDERATION OF THE ISSUES

9. Section 94 of the Social Security Act 1991 (the Act) provides:

94.(1)  A person is qualified for disability support pension if:

(a)       the person has a physical, intellectual or psychiatric impairment; and
(b)       the person's impairment is of 20 points or more under the Impairment Tables; and
(c)       one of the following applies:

(i)        the person has a continuing inability to work;

(ii)       the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d)       the person has turned 16; and
(e)       the person either:

(i)        is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii)       has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii)      is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)      is not an Australian resident; and
(B)      is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Meaning of continuing inability
94.(2)  A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)       the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and
(b)       either:

(i)        the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii)       if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training—such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94.(3)  In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a)       the availability to the person of educational or vocational training or on-the-job training; or
(b)       if subsection (4) does not apply to the person—the availability to the person of work in the person's locally accessible labour market.

1. The applicant submitted that because of ongoing pain and psychological issues he was incapable of working and that the oral evidence from Dr Aviles was wrong.  He said that the Tribunal should prefer the conclusion by Dr Nicholas.

2. Ms Hackney submitted that the applicant has a physical, intellectual or psychiatric impairment and therefore satisfies s94(1)(a) of the Act. She also stated that the applicant has an impairment of 20 points or more under the Impairment Tables and satisfies s94(1)(b) of the Act.

3. In relation to s94(1)(c) of the Act Ms Hackney submitted that the medical evidence suggested strongly that the applicant would be able to return to full-time or part-time work or study within two years, and more particularly within 6 to 12 months. She said that only Dr Aviles in her report dated 26 June 2002 and Dr Nicholas held the view that the applicant was incapable of work or study within two years, and that the oral evidence from Dr Aviles had explained her reasons for her latest opinion. Ms Hackney said that the conclusion by Dr Nicholas was inconsistent with some of the answers given by him in his report, including an opinion that the applicant could undertake a variety of tasks without difficulty. Ms Hackney said that, in any event, the applicant's own evidence showed that he wishes to operate a business for seven days per week. She also submitted that the applicant has demonstrated in his TAFE course that he is capable of undertaking educational or vocational training.

4. In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. The Tribunal accepts the submission from Ms Hackney that the applicant satisfies s94(1)(a) and s94(1)(b).

5. The Tribunal notes that work is defined in s94(5)(a) of the Act as work that is for at least 30 hours per week at award wages or above. The Tribunal agrees with Ms Hackney that the weight of medical evidence is that the applicant is able to return to work within 6 to 12 months. The Tribunal also notes that in her oral evidence Dr Aviles explained that her different conclusion in her report dated 24 June 2002 was not based on a medical assessment. The Tribunal places little weight on this report.

6. The Tribunal also places little weight on the report by Dr Nicholas because the conclusions do not appear to be consistent with the answers given by him in the body of the report. The Tribunal accepts that the applicant has pain in his arm and that some movements and activities may be restricted. However in all the circumstances the Tribunal finds that, based on the medical evidence the applicant has not demonstrated a continuing ability to work. In reaching this conclusion the Tribunal also finds that the impairment does not prevent the applicant from undertaking educational or vocational training or on-the-job training during the next two years (s94(2)(b) because of his attendance at the TAFE course in 2002. Therefore the Tribunal finds that the applicant does not satisfy s94(1)(c) of the Act and does not qualify for disability support pension.
   DECISION

7. The Tribunal affirms the decision under review.

I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member

(sgd)       Jason Lim
              Associate

Date of hearing:  10 July 2002
Date of decision:  10 July 2002
Advocate for applicant:               Self-represented
Advocate for respondent:            Ms K. Hackney, Centrelink