Baden and Secretary, Department of Family and Community Services - [2000] AATA 314

DECISION AND REASONS FOR DECISION [2000] AATA 314

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/526

GENERAL ADMINISTRATIVE DIVISION )

Re MAHMOUD BADEN
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Ms S M Bullock

Date20 April 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd) S M Bullock
………………………………..
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – impairment rating – continuing inability to work
Social Security Act 1991 – s 94
Re Pusnjak and Secretary, Department of Social Security (AAT12944, 26 May 1998)
Secretary, Department of Social Security v Pusnjak (1999) FCA 994

REASONS FOR DECISION

Ms S M Bullock

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Mahmoud Baden concerning a decision of the Social Security Appeals Tribunal ("SSAT") made on 16 April 1998 that Mr Baden did not qualify for Disability Support Pension (T2). The SSAT's decision affirmed the decision made by an Authorised Review Officer ("ARO") of the Department of Family and Community Services to cancel Mr Baden's Disability Support Pension. The ARO decided on 22 January 1998 (T37) that as Mr Baden only had a combined impairment rating of 15 per cent, he did not qualify for a Disability Support Pension under section 94 of the Social Security Act 1991. The ARO's decision affirmed a decision of a delegate of the Secretary of the then Department of Social Security made on 20 October 1997 (T28).
Mr Baden attended a hearing before the Tribunal in Sydney and provided oral evidence. Mr Baden represented himself and was provided with the assistance of an Arabic speaking interpreter. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Mr B Slattery, departmental advocate.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents", T1 to T40) and the following exhibits:
Exhibit No Description Date
A1 A2 A3 A4 R1 R2 R3 Diagnostic imaging report made by Dr K Gan Report by Dr R Hedge Bone Scan Report by Dr I Brittain Letter "To Whom It May Concern" from Dr R Hedge Respondent's Statement of Facts and Contentions Letter from Dr R Hedge to Centrelink Report by Dr P Harvey-Sutton, Consultant Occupational Physician 27 May 1999 1 September 1998 26 October 1998 14 May 1998 29 September 1999 4 August 1999 19 March 1999

After the hearing, this decision was stored behind the matter of Secretary, Department of Social Security v Pusnjak (1999) FCA 994, pending an appeal in that matter being determined by the Full Federal Court. However, the appeal to the Full Federal Court was withdrawn, which made way for Mr Baden's application for review to the Tribunal to be determined.
LEGISLATION
A determination of this matter requires consideration of the provisions of the Social Security Act 1991 ("the Act").

Section 94 of the Act as it applied at the time states:
"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% or more under the Impairment Tables; and
(c)because of the impairment the person has a continuing inability to work; and
…"

Subsection 94(2) of the Act deals with the meaning of continuing inability to work and as relevant states:
"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."

Of relevance also are subsections 94(3), (4) and (5) of the Act and as relevant, state:
"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:
(d)the availability to the person of educational or vocational training or on-the-job training; or
(e)if subsection (4) does not apply to the person-the availability to the person of work in the person's locally accessible labour market.
94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5) In this section:
'on-the-job training' does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
'educational or vocational training' does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
'work' means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible labour market."

ISSUES

Following the provision of further medical evidence, the Respondent now accepts that Mr Baden has a 20 per cent combined impairment rating. Accordingly, there is no dispute that Mr Baden satisfies subsection 94(1) (a) and (b) of the Act.
The only issue remaining is whether or not Mr Baden has a continuing inability to work because his medical impairment of itself prevents him from undertaking any work for at least 30 hours per week at award wages within the next two years; and either
1)the impairment is of itself sufficient to prevent Mr Baden from undertaking educational, vocational or on the job training during the next two years; or
2)because of his impairment, such training is unlikely to enable Mr Baden to undertake any work for at least 30 hours per week at award wages within the next two years.

BACKGROUND

The following facts are provided by way of background and the material contained herein is not disputed:
·Mr Baden was born on 16 February 1944 in Tripoli, Lebanon. He attended school in Lebanon until he was approximately 16 years old, finding that school work was difficult. Mr Baden studied "a little English" at school. Following the cessation of his education, he worked as a labourer.
·Mr Baden came to Australia on 15 May 1966 when he was in his early twenties, working initially in Western Australia as a labourer for three to four months (T3). Mr Baden's employment has mostly involved labouring duties including making stainless steel sinks in 1969 and working in a cigarette factory in Kensington.
·Mr Baden married in Lebanon on 29 December 1974 (T3, p11) and has seven children. He has three children living at home aged approximately 15, 12 and ten years, one married child and two children who are "in and out of home".
·In 1977, Mr Baden was working in Kensington, NSW, making cigarettes when he had a work accident while lifting a heavy bag. Mr Baden suffered back injuries and received workers compensation payments and finally a settlement of approximately $20,000 (T4).
·On 8 June 1977, Mr Baden claimed an Invalid Pension, having previously been in receipt of Sickness Benefit for approximately two years (T3).
·Mr Baden was granted Invalid Pension commencing on 4 August 1977 (T5) and this was related to his lumbar intervertebral disc lesion at L4-5 for which he was required to wear a corset (T8).
·Various Invalid Pension reviews were undertaken during 1980 (T6) and September and October 1981 (T11, T12, T13, T15) and Mr Baden's Invalid pension continued.
·On 12 November 1991, Mr Baden was automatically transferred from Invalid Pension to Disability Support Pension following legislative change.
·A review of Mr Baden's Disability Support Pension was completed by Mr Baden on 12 August 1997. It should be noted that in 1997 and 1998, the Department and later Centrelink reviewed a large number of Disability Support Pension recipients who had been, like Mr Baden, automatically transferred from Invalid Pensions. Mr Baden indicated in the review form that he suffered from back and shoulder pain and had a heart problem (T20, p33). Accompanying this form was a report by Dr S Hanna who in a "Treating Doctor's Report" of 12 August 1997 reported of Mr Baden that he had:

lumbar disc bulge; and
arthritis right shoulder; and
hypercholesterolaemia (T21, p38).
Dr Hanna had been Mr Baden's General Practitioner since 10 August 1992 (T21). Dr Hanna did not consider Mr Baden could work either full or part time in any work within the next two years (T21, p40).
·On 26 August 1997, Dr L J Day, Cardiologist, reported that Mr Baden remained very anxious about his cardiovascular state of health, however on examination Dr Day reported that Mr Baden had very few symptoms which could cause any concern. Dr Day further reported that at this visit Mr Baden was completely normal with a resting ECG within normal limits (T22, p43).
·On 29 August 1997, the Government Medical Officer with Health Services Australia was not satisfied with the information provided in the Treating Doctor's Report attached to the medical review for Mr Baden's Disability Support Pension and requested that further examination be undertaken by a Health Services Australia medical officer (T23).
·Dr Hanna further reported on 10 October 1997 that Mr Baden suffered from the following conditions:
palpitation of heart (three years); and
hypercholesterolaemia; and
L4-5 disc bulge and L5-S1 central disc bulge; and
right shoulder chronic arthritis (T25, p46).
·Dr Day reported on 10 October 1997 that Mr Baden had been treated for palpitations from time to time and that this condition was due to both atrial and ventricular ectopics. The palpitations had been controlled, Dr Day reported. Dr Day noted Mr Baden's suffering from low back pain (T26, p47).
·On 16 October 1997, Dr M Murphy, Medical Adviser with Health Services Australia reported that, having examined Mr Baden, the following impairment ratings were appropriate:
Lumbar back pain  Table no.6                5%
Osteoarthritis, right shoulder     Table no.6                5%
Dizzy Turns (not significant)     Table no.25              0%
Palpitations (not significant)     Table no.1.1             0%
Diabetes/peptic Ulcer/               Table no.25              0%
hypercholesterolaemia
(not significant)  (T27)
Dr Murphy concluded that Mr Baden had a combined impairment rating of ten per cent based on history and examination findings. Dr Murphy opined:
"…I could not find any compelling medical reasons that might prevent him from doing work of a light or sedentary nature which would allow frequent positional change. The client appeared very reluctant to even consider this as an option, and I feel that his lack of motivation will be the major impediment to his performing work of this kind, especially considering the length of time he has already been out of the work force." (T27, p64)
·On 20 October 1997, Mr Baden's Disability Support Pension was cancelled by a departmental delegate (T28).
·On 27 October 1997, Mr Baden sought an internal departmental review of the delegate's decision. He noted that he did not think that his conditions had changed since 1975. Mr Baden felt that Health Services Australia had examined him too quickly and did not properly consider his conditions or look at all of his reports. Further, Mr Baden wrote that he did not feel capable of doing any type of full time work. He was in pain and the medication he took made him very tired and affected his bladder (T29).
·Dr Hedge, Mr Baden's General Practitioner, reported on 29 October 1997 that Mr Baden was unfit to undertake any type of work (T30).
·Dr W Menashi, Medical Adviser with Health Services Australia, reported on 13 November 1997 that he had considered further medical evidence provided by Mr Baden and his doctors including Dr Hedge, Dr Day, a discharge letter from Liverpool Hospital, various blood tests and the results of a mylogram report from Advanced Liverpool Medical Centre, but still considered that there was no evidence which would cause the clinical assessment made by Dr Murphy to be overturned. Dr Menashi concluded that Mr Baden had been assessed appropriately and the combined impairment rating and work ability assessment continued to be ten per cent combined impairment rating and Mr Baden was fit for light and sedentary work (T31).
·On 14 November 1997, the delegate's decision to cancel the Disability Support Pension was confirmed following an internal review (T32).
·On 20 November 1997, Mr Baden sought a review of the departmental delegate's decision by an ARO (T33) and on 21 November 1997 Mr Baden explained to a departmental officer that his reasons for requesting an ARO referral related to him having been on a pension for 20 years and that he did not think he could work particularly as his back condition caused him many restrictions. Mr Baden's contention was supported by his doctor (T34).
·On 11 December 1997, Dr M S Memon, Orthopaedic Consultant, reported to Mr Baden's General Practitioner, Dr Hedge, that Mr Baden's back pain was chronic and that Dr Memon had also demonstrated shoulder exercises for Mr Baden to undertake at home. X-ray and ultrasound of the right shoulder were reported by Dr Memon to be normal and x-rays of the lumbar spine showed minimal L4-5 disc space narrowing (T35).
·On 22 January 1998, the ARO affirmed the departmental delegate's decision to cancel Mr Baden's Disability Support Pension but increased the impairment rating to 15 per cent made up of a ten per cent rating for back pain (Table 6), five per cent for osteoarthrisis right shoulder (Table 3) and nil ratings for dizziness, peptic ulcer, heart palpitations and hypercholesteraemia. Despite the increase in combined impairment rating, Mr Baden still did not meet the legislative requirements for a Disability Support Pension and therefore the original Departmental delegate's decision remained unchanged (T37).
·On 4 February 1998, Mr Baden sought a review by the SSAT (T39). The SSAT decided on 16 April 1998 to affirm the ARO's decision to cancel Mr Baden's Disability Support Pension.
·On 3 April 1998, Dr R White, Consultant Rheumatologist, noted:
"…Although guarded and taken slowly, movements of his lumbar spine in all planes were near normal in range. A number of inconsistencies were noted with straight leg raising. When performed while lying, pain was reported at just 300. In contrast, he was able to sit up and lean forward with his hips flexed more than 900 and his knees fully extended. Neurological examination of his lower limbs was normal and I couldn't indentify any abnormality in the feet. His peripheral pulses were symmetrical and his feet were non tender.
…Hence I feel that such discomfort is almost certainly related to his chronic back pain, and that both have a neuropathic basis, reflecting an augmented pain response or nociceptor sensitisation…However, little benefit is likely to be obtained from any specific treatment measure unless Mr Baden is prepared to actively participate in his own management by persevering with the exercises that he has been given for his back." (T40)
·On 11 May 1998, Mr Baden made an application to the Tribunal for review of the SSAT's decision (T1).
·Mr Baden is currently in receipt of a Newstart Allowance.
·On 29 September 1999 the Respondent advised the Tribunal that following the provision of further medical evidence, principally that contained in a report of Dr P Harvey-Sutton, Consultant Occupational Physician, of 19 March 1999 (Exhibit R3), the Respondent now accepted that Mr Baden has a 20 per cent impairment rating. Dr Harvey-Sutton's combined impairment ratings relied on findings contained in a report by Occupational Physician, Dr M Baz, whose report is not available to the Tribunal. Dr Harvey-Sutton concurred with Dr Baz's impairment ratings and reported these as:

Disability Table Rating
Thoracolumbar spine Other musculoskeletal Cardiac arrhythmia Diabetes mellitus Upper gastrointestinal Combined impairment rating 5.2 6 25 24 13 10 5 0 0 5 19 (rounded to 20)

(Exhibit R3)

EVIDENCE

Mr Baden listed his current complaints as; backache; prostate problem; heart; pain in his legs (sciatica); arthritis; and pain in his feet.
In relation to his backache, Mr Baden stated that Dr Hedge looks after him. He has had physiotherapy in the past but told the Tribunal that he does not undertake the recommended exercises. Mr Baden explained that he is unable to lift heavy weights. Currently, Mr Baden drives a car to places such as to the shops, but mostly shot distances. Mr Baden also walks on occasion to do the shopping nearby. In relation to the actual process of shopping, mostly Mrs Baden undertakes this task but Mr Baden is able to assist from time to time by carrying such items as milk and butter.
Mr Baden further explained to the Tribunal that he can undertake some gardening such as weeding, but that mostly his son would assist with the mowing of the lawns or heavy gardening. On occasion, Mr Baden is also able to mow the lawn but emphasised that he could only do this for a few minutes at a time. Often what occurs after Mr Baden has undertaken such work is that he later suffers with pain, having extended himself.
Mr Baden told the Tribunal that he walks his children to school and back most days which is 800 metres each way.
Mr Baden was referred to the report of Dr P Harvey-Sutton, Consultant Occupational Physician, who on 19 March 1999 reported that Mr Baden had told her that he could lift a ten kilogram bag of potatoes. Dr Harvey-Sutton also noted that there were small cuts and ingrained dirt on Mr Baden's calloused hands. Mr Baden had apparently told Dr Harvey-Sutton that his hands had become this way because he had been working on mending a video recorder. Mr Baden was questioned as to what he thought of Dr Harvey-Sutton's comments in relation to his "work hardened hands", particularly as she had concluded that Mr Baden was able to perform activities of a significant nature with his hands and for prolonged periods (Exhibit R3).
Mr Baden explained to the Tribunal that he undertakes handyman-type work around the house, fixing things, mending shoes with glue and other "many small things about the home". When fixing a VCR, for example, Mr Baden stated that he takes the case off the machine, cleans the heads with spirit and that this could cause his hands to become dirty. Further, Mr Baden told the Tribunal that he can undertake other work such as repairing electrical cords, and tightening screws. For larger jobs he employs tradesmen, such as recently when he had the lounge room and kitchen painted.
Mr Baden told the Tribunal that he is kept from working by back pain and pain from his feet which he finds produces a burning sensation. It is not clear to Mr Baden why he experiences pain in his feet but he considers this is related to arthritis.
In relation to his prostrate condition, Mr Baden stated that he initially was under the care of an Urologist, Dr Rochford, and he currently takes Zocar for this condition.
Mr Baden told the Tribunal that he has heart palpitations and consults a Cardiologist, Dr L J Day, every two to three months. Mr Baden stated that he becomes very nervous because his heart "races".

Mr Baden reported that he is a diabetic but does not take medication for this condition, and is able to control the disease through diet.
The Tribunal asked Mr Baden about a condition of depression or anxiety reported by Dr R Hedge as "anxiety and major depression disorder" in reports of 14 May 1998 (Exhibit A4) and 1 September 1998 (Exhibit A2). Mr Baden stated that he did not know about this particular condition.
In relation to his daily activities, Mr Baden told the Tribunal that he would wash himself when he got up and would sit down to eat breakfast and read the newspapers. Mr Baden would walk the children to school as previously described and then having returned, he might do some small tasks but he would sleep during the day for hours. Mr Baden stated that he would read for a short time and could watch TV when he was able. What he can do depends on how his back or other conditions are at the time.
When Mr Baden first came to Australia, he undertook English language classes for a short period.
In relation to his ability to work, Mr Baden told the Tribunal that he did not trust himself working in any occupation because of his pain. Mr Baden informed the Tribunal that he did not think he could do a good job and he could not take the responsibility of working because he always had pain in his back, feet and in his prostrate. While he would like to work in light duties positions, he did not believe that he had the ability, given his physical disabilities. Mr Baden reiterated many times during the course of his evidence that when his pain occurred he had to lie down and this could involve lying down for one hour in the morning, half an hour at noon and half an hour to one hour in the late afternoon. No employer would be able to accommodate Mr Baden's physical needs, he stated. Further, Mr Baden noted that the medication he has taken over the years, including Voltaren and pain killers, causes him difficulties with his stomach. He has been referred by his general practitioners, Dr Hanna and Dr Hedge and to specialists but no-one seemed to be able to help him with his medical conditions.
SUBMISSIONS
Mr Baden submitted that he is in great pain and has had numerous x-rays and doctor's reports to prove his disability. He stated that the Tribunal should be guided by the opinions of his doctors, particularly from Dr Hanna and Dr Hedge, who state that he is unable to work.
Other specialist doctors have provided differing reports and Dr Murphy, the Medical Adviser with Health Services Australia, opined that Mr Baden could work undertaking light duties. However, Mr Baden questioned how Dr Murphy could have arrived at such a view when he only spent a very short time examining him and did not fully look at the doctor's reports Mr Baden had taken with him.
Mr Baden submitted that he would like to work and that he did not think he would have any difficulty learning to undertake a light semi-skilled job, but this was not the main issue. It would be of no assistance learning how to do a job which he would be unable to perform because of the pain he experienced, particularly in his back, his feet and his prostrate. Mr Baden submitted that he cannot sit down for very long and he always has to lie down. While providing evidence at the Tribunal, Mr Baden submitted that he was in extreme pain and was just managing to persevere with sitting for a prolonged period.
Mr Baden asked the Tribunal to accept that he would work if he could and that his life of staying at home and being an invalid is not something that he would have chosen. Mr Baden contended that he could not take the responsibility of a job and then have to stop it because of his physical problems. "I am an old man", he said, "I cannot work". Mr Baden contended that the Respondent had accepted that he had a 20 per cent combined impairment rating and because this was proved and he had other objective medical evidence contained in x-rays and doctor's reports, they should in combination be relied upon. The opinions provided by Mr Baden's treating doctors, Dr Hedge and Dr Hanna should be preferred over those who had only assessed him over the short term, Mr Baden concluded.
Mr Slattery, representing the Department, referred the Tribunal to subsection 94(1)(c) of the Act as the only issue in contention. The Tribunal must decide whether or not Mr Baden has a continuing inability to work for 30 hours per week and that whether such work is available is irrelevant. The only issue is whether or not the nature and extent of Mr Baden's disability prevents him from working.
Referring to the reports of Dr Hedge and Dr Hanna, Mr Slattery submitted that these reports were brief and unsatisfactory and did not provide any detailed support of their conclusions that Mr Baden could not work. Alternatively, medical reports provided by Dr Day, Dr White and Dr Memon do not support the views of Dr Hanna and Dr Hedge, Mr Slattery submitted.
Further, Dr Murphy, Medical Adviser with Health Services Australia, having examined Mr Baden and also his various medical and imaging reports, expressed the opinion that Mr Baden did not qualify for a Disability Support Pension as Dr Murphy could find no compelling medical reasons which might prevent him from undertaking light work of a sedentary nature. Dr Murphy in fact opined that Mr Baden's lack of motivation was a major impediment to him performing work and this also was impacted upon by Mr Baden's length of time out of the work force (T27).
Dr P Harvey-Sutton, a specialist Occupational Physician, in her report of 19 March 1999 noted that Mr Baden's impairments were not in themselves sufficient to prevent Mr Baden from working in any work for at least 30 hours per week. In particular she noted Mr Baden's work-hardened hands which in her view demonstrated his capacity to perform activities with his hands and for prolonged periods. Dr Harvey-Sutton was not convinced that these work-hardened hands were the result of repairing a VCR, as Mr Baden had explained.
Mr Slattery contended that the Tribunal should note that a report prepared by Dr Baz, Occupational Consultant, had not been provided to the Tribunal by Mr Baden. Dr Baz's report had been considered by Dr Harvey-Sutton and had been utilised in reaching Mr Baden's combined impairment rating of 19 per cent, rounded to 20. The fact that Dr Baz's report had not been provided suggested that it was unfavourable to Mr Baden's case, Mr Slattery contended. Further, Mr Slattery wished the Tribunal to consider that Dr Baz's report had been commissioned by the Legal Aid Commission who had been acting for Mr Baden, but had later withdrawn their representation of him.
Specifically referring to Dr Hanna's Treating Doctor's Report, prepared on 12 August 1997, Mr Slattery submitted that Dr Hanna had not completed the "Work Ability" section of the report contained at T21, p39. On page 40 of T21, Dr Hanna had however ticked the box indicating that Mr Baden was unable to work for the next two years in any work either part or full-time. There was no evidence for such a finding nor any discussion or explanation from Dr Hanna as to how he had reached this conclusion. Accordingly, Mr Slattery submitted that there is insufficient evidence provided by Dr Hanna to support a finding that Mr Baden could not work.
Dr Hedge, who had provided a number of reports during 1998 and 1999 had also not completed any detailed explanation as to his findings and conclusions that Mr Baden was unable to work, Mr Slattery submitted. In Dr Hedge's report of 14 may 1998 (Exhibit A4), Dr Hedge had referred to Mr Baden's disabilities and assigned them an impairment rating with no reference to any particular table nor explanation as to how he reached the particular percentage ratings. Mr Slattery submitted that when reference was had to the tables for the assessment of work-related impairment for disability support pension ("the Impairment Tables") contained in Schedule 1B to the Act, Dr Hedge's ratings assigned to particularly lumbar back pain and osteoarthritis bore no relationship to the Impairment Tables. Further, Dr Hedge referred to Mr Baden's anxiety and depression which had previously not been referred to. Dr Hedge's report of 1 September 1998 (Exhibit A2) also referred to major depression disorder and anxiety not previously referred to. Dr Hedge's final report of 4 August 1999 again reiterated his opinion that Mr Baden could not work for 30 hours per week at any type of work for at least the next two years and could not undertake any occasional training course. He also referred to Mr Baden's enlarged prostrate and chronic prostititus which had not previously been referred to. Mr Slattery submitted that not only were there additional conditions referred to by Dr Hedge which he seemed to take into account in his assessment of Mr Baden's inability to work, but these new conditions had not been assessed by the Department and it was not known whether the conditions were temporary, permanent, stabilised or receiving any particular treatment. Further, Mr Slattery submitted that Dr Hedge's conclusions concerning Mr Baden's work ability were not supported by any objective medical evidence or analysis. In such circumstances, Mr Slattery submitted that the Respondent could not accept the treating doctor's reports as they were incomplete, inconclusive and not supported by other objective medical investigation and opinion.
Referring to Dr Day's report of 26 August 1997, Mr Slattery submitted that Dr Day had indicated that Mr Baden's heart was "normal" and that he had few symptoms (T22). Dr Day had further reported on 10 October 1997 that test results on a resting ECG and a cardiac enzyme test were negative (T26).
Additional medical opinion was provided by Dr Memon, Orthopaedic Consultant, who noted on 11 December 1997 that the examination of x-rays of the right shoulder indicated that this was normal and that there was minimal L4-5 disc narrowing. Dr Memon made no mention or conclusion of any ability or inability of Mr Baden to work (T35). The report provided by Dr R White, Consultant Rheumatologist on 3 April 1998, also concluded that there were inconsistencies in relation to Mr Baden's straight leg raising and Dr White concluded that unless Mr Baden is prepared to actively participate in his own treatment and management by persevering with exercises, his condition will not change (T40). Dr White does not come to any conclusions concerning Mr Baden's ability or inability to work.
The Respondent relies, Mr Slattery submitted, on the report of Dr P Harvey-Sutton which Mr Slattery submitted is consistent with the reports of other doctors, Dr Murphy and Dr White. Based on the examination and findings of Dr Harvey-Sutton, Mr Slattery submitted that Mr Baden had coloured his symptoms and that Mr Baden was capable of more and in fact was more active than he would have the Department believe. Having so contended however, Mr Slattery acknowledge that the Respondent did not have any further evidence to press this point, apart from Dr Harvey-Sutton's observation about Mr Baden's work hardened hands. This was not detrimental to the Respondent's case because Mr Slattery submitted that the preponderance of objective medical evidence supported by examination was that Mr Baden did have a continuing ability to work in light semi-skilled positions.
Accordingly, Mr Slattery submitted that Mr Baden does not satisfy subsection 94(1)(c) of the Act in that he does not have a continuing inability to work as defined in subsection 94(2) of the Act. Mr Slattery submitted that it is the impairment itself which must be taken into account and not other irrelevant considerations in the legislative sense, such as availability of work.
While Mr Baden is now aged 55 years, Mr Slattery submitted that it is the time of the original decision made by the departmental delegate in October 1997 which must be referred to when considering Mr Baden's age, which at that time was 53 years. Mr Slattery supported this view by reference to Secretary, Department of Social Security v Pusnjak (1999) FCA 994.
While Mr Baden is now 55 years old, he was not so at the time of the original decision on 20 October 1997 and accordingly Mr Slattery submitted that section 94(2)(b)(ii) applies to Mr Baden in relation to the current appeal but would cease to apply if he lodged a new claim when at that point, section 94(5) would have to be taken into account. In any event, Mr Slattery submitted that as the Respondent considers that Mr Baden does not satisfy section 94(2)(a) of the Act, then subsection 94(4) does not apply and Mr Slattery maintained that Mr Baden is able to undertake work within the meaning of subsection 94 (5) of the Act, following suitable training.
Mr Slattery submitted that the Respondent accepts that Mr Baden is unable to undertake heavy manual work or work that would not enable him to change his posture regularly. The predominance of available medical evidence indicates however that Mr Baden has a capacity for light lesser skilled work such as duties of a car park attendant, caretaker or light process worker. There are also other medical conditions present which have not been rated nor a determination made as to their being stabilised as permanent or whether or not they impact on Mr Baden's ability to work.
In conclusion, Mr Slattery submitted that Mr Baden does not satisfy the relevant provisions of section 94 of the Act at the time of the original decision on 20 October 1997 and the Respondent is satisfied that he does not satisfy the relevant provisions now. Mr Baden does not have a continuing inability to work as required by subsection 94(1)(c) of the Act and the correct decision was made that Mr Baden no longer qualified for Disability Support Pension.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the documentary and oral evidence, the legislation and case law.
The Tribunal finds that Mr Baden was co-operative in the provision of his evidence. The Tribunal understands Mr Baden's frustration with his situation, particularly as he had been in receipt of an Invalid Pension for some considerable time and was transferred to a Disability Support Pension which was then cancelled. The Tribunal attempted to explain the circumstances of the cancellation of the Disability Support Pension to Mr Baden, the different criteria for the Disability Support Pension and the review process.
The Tribunal has noted the Respondent's concession that Mr Baden has reached the 20 per cent impairment level required to satisfy subsection 94(1)(b) of the Act. Further, the Tribunal, in noting the impairment rating provided by Dr Harvey-Sutton, arising out of Dr Baz's impairment ratings, also finds that the rating is 19 per cent, rounded to 20. The Tribunal considers the ratings below are consistent with Mr Baden's level of disability:
Disability Table Rating
Thoraco-lumbar spine (lumbar disc bulge L4-5, L5-S1) Other musculoskeletal Cardiac arrhythmia Diabetes Mellitus Upper gastrointestinal Combined impairment rating 5.2 6 25 24 13 10 5 0 0 5 19 rounded to 20

Accordingly the Tribunal finds that Mr Baden satisfies subsections 94(1)(a) and (b) of the Act.

The Tribunal notes that Dr Hedge has stated in his reports of 14 May 1998 (Exhibit A4) and 1 September 1998 (Exhibit A2) that Mr Baden suffers from major depression and anxiety. Mr Baden was not able to provide any further information about this condition to the Tribunal. The Tribunal notes that this condition was rated by Dr Hedge at five percent and the condition is deteriorating. There is no additional information available to the Tribunal as to whether the condition of major depression and anxiety is stabilised, permanent or temporary and there is no information as to whether or not the condition is being treated. In such circumstances, the Tribunal is unable to rate this condition under the impairment tables because of insufficient medical information. This is to Mr Baden's detriment because although he has reached the required 20 per cent impairment level to satisfy subsection 94(1)(a) and (b) of the Act, it may well be that the condition of anxiety and depression has some impact in relation to his continuing inability to work and at this stage, the Tribunal is unable to make any findings on this because of the paucity of available objective medical information.
The Tribunal further notes that Mr Baden reports significant disability from his prostrate condition and the Tribunal notes that in Dr Hedge's most recent report of 4 August 1999, Dr Hedge refers to Mr Baden having an enlarged prostate and chronic prostititus (Exhibit R2). Again, the Tribunal has no other information available to it in relation to a prostate problem. It was not reported in Mr Baden's Disability Support Pension review and accordingly the Tribunal has no information as to whether this condition is temporary, permanent or stable and whether or not there is an ongoing treatment regime. The Tribunal notes that Mr Baden was under the care of Dr Rochford, Urologist, but there are no reports advising the Tribunal of the status of this condition. While the Tribunal accepts that Mr Baden does indeed suffer from this condition and it causes him some discomfort and disability, the Tribunal is not able under the provisions of the legislation to consider the prostate condition even though it may well impact upon Mr Baden's continuing inability to work.
Having found that Mr Baden satisfies subsections 94(1)(a) and (b) of the Act, in that Mr Baden has a number of physical disabilities which the Tribunal is able to rate at 20 per cent under the Impairment Tables from schedule 1B to the Act, the Tribunal now turns to consider whether or not under the provisions of subsection 94(1)(c) Mr Baden has a continuing inability to work. Subsection 94(2) of the Act deals with a continuing inability to work and firstly the Tribunal considers whether or not under subsection 94(2)(a) of the Act, Mr Baden's impairments of themselves are sufficient to prevent him from doing any work within the next two years. In order to determine whether or not Mr Baden has a continuing inability to work, the Tribunal has referred to the various medical reports provided to it. The Tribunal notes that there are various medical reports expressing a number of different views as to whether or not Mr Baden has a continuing inability to work. Dr Hanna, Mr Baden's earlier general practitioner noted in his Treating Doctor's Report attached to the Disability Support Pension review (T21) that Mr Baden was unable to return to his usual job or any other type of full or part time work within the next two years. Unfortunately, despite Dr Hanna having been Mr Baden's doctor since 1992, Dr Hanna did not provide any detailed or explanatory material at all in relation to Mr Baden's work ability (T21, p39) and this lack of supportive documentation and analysis did not assist the Tribunal.
Dr Hanna provided a further hand written report on 10 October 1997 noting Mr Baden's conditions of palpitations, hypercholesterolaemia, L4-5 disc bulge and L5-S1 central disc bulging, arthritis right shoulder and chronic gastritis and that Mr Baden was still in treatment for all these diseases. Dr Hanna did not indicate in that report any information concerning Mr Baden's ability to work.
Mr Baden's most recent general practitioner, Dr Hedge, reported on 29 October 1997 that Mr Baden was unfit for work and followed this up with further reports of 14 May 1998, 1 September 1998 and 4 August 1999. Dr Hedge was clear in his various reports that Mr Baden was unable to work for 30 hours per week in any type of work for at least two years and also unfit for any occasional training courses within the next two years. As the Tribunal has previously recorded, Dr Hedge refers to conditions of major depression and anxiety and chronic prostititus and enlarged prostate which from the Tribunal's and Department's perspective are new conditions. It is quite clear that in Dr Hedge's opinion, these conditions are significant and debilitating and he has used them in determining various impairment ratings for Mr Baden. The difficulty for the Tribunal is that under the legislation, and given the decision which is under review, the Tribunal is unable to make any findings in relation to either the major depression and anxiety or the prostate condition. This is because there is no evidence available to the Tribunal as to whether these conditions are stable, temporary or permanent, or whether any treatment might be undertaken. In such circumstances, while Dr Hedge might be quite correct in his opinion that all of Mr Baden's conditions reported by Dr Hedge prevent Mr Baden from working, the Tribunal is unable to determine the relative impact of the non claimed conditions on Mr Baden's ability to work. Therefore, the Tribunal finds that Dr Hedge's opinion as to Mr Baden's ability to work is not able to be fully accepted because of the confounding factors of the non-claimed conditions of major depression, anxiety and the prostate condition. Thus the impact of Dr Hedge's opinion is diminished at this time.

The other reports of Cardiologist, Dr Day, Consultant Rheumatologist, Dr White, and Orthopaedic Consultant, Dr Memon, while reporting on Mr Baden's orthopaedic and cardiac problems, do not indicate an opinion as to Mr Baden's inability to work. Dr White reports some inconsistencies in the tests he performed on Mr Baden and Dr Day indicates that in relation to Mr Baden's cardiac problem, Mr Baden is more anxious about this condition than is warranted by the objective medical findings.
There are strong opinions expressed by Dr Murphy, Medical Adviser with Health Services Australia, and his colleague, Dr Menashi that not only did Mr Baden only have a ten per cent combined impairment rating, but it was considered that he was suitable to undertake light duty or sedentary work which would allow for frequent positional change. The Tribunal notes however that this ten per cent rating assessed as appropriate on 12 August 1997 has since been conceded by the Department to be more appropriately assessed at 20 per cent.
The Tribunal considered the report of Dr Harvey-Sutton, Consultant Occupational Physician with Health Services Australia. The Tribunal believes that Dr Harvey-Sutton undertook a thorough examination of Mr Baden and also reviewed a considerable amount of clinical documentation in relation to his various conditions. Having determined that Mr Baden had a combined impairment rating of 20 per cent under the Impairment Tables, Dr Harvey-Sutton considered Mr Baden's ability or inability to work. From her clinical examination and review of medical evidence, Dr Harvey-Sutton opined that Mr Baden could not perform work requiring repetitive lifting of weights greater than ten kilograms and should not work in abnormal postures. Further, Dr Harvey-Sutton concluded that Mr Baden should not work at heights or near moving machinery. He could however perform process or factory work, bench or work assembly duties. In reaching this conclusion, Dr Harvey-Sutton also noted Mr Baden's "work hardened hands". Dr Harvey-Sutton did not accept that the presentation of Mr Baden's hands could have resulted from him repairing a VCR as he had told her. The Tribunal also does not accept this explanation from Mr Baden and very much doubts that the type of presentation as observed by Dr Harvey-Sutton could have resulted from repairing electrical cords or undertaking small household jobs. The conclusion that Dr Harvey-Sutton came to and one which the Tribunal also has reached is that Mr Baden is probably able to do more than he has revealed to his doctors or to the Tribunal. There is no additional evidence for this finding, however the Tribunal is of the opinion that based on the clinical and objective medical evidence provided through x-rays, clinical examination and exercise testing, Mr Baden is able to undertake work for at least 30 hours per week in either a light semi-skilled or light lesser skilled position. This work would require that Mr Baden should not lift weights greater than ten kilograms or undertake duties requiring repetitive lifting and/or bending.
Accordingly, the Tribunal determines that under the provisions of subsection 94(2)(a) of the Act, Mr Baden's impairments as they were reported in his Disability Support Pension review in August 1997 are of themselves insufficient to prevent him from doing any work within the next two years. Having so found, the Tribunal emphasises that the conditions of major depression, anxiety and the prostate condition have not been claimed or assessed. In this decision, the Tribunal has not made a finding on them as they are not part of the decision under review. Mr Baden should take the opportunity of claiming these conditions and having them properly assessed for the purposes of a Disability Support Pension claim. The Tribunal considers that they may very well support his contention of an inability to continue work and further, if Mr Baden were to claim these additional disabilities, he would also have the opportunity of being assessed under the terms of subsection 94(4) of the Act which relates to a person turning 55 years of age. In such circumstances, the Secretary of the Department, in considering whether educational or vocational training is likely to enable Mr Baden to work, must have regard to the likely availability to Mr Baden of work in his locally accessible labour market.
It is also the Tribunal's finding, based on the documentary medical evidence and Mr Baden's evidence that Mr Baden would not be prevented by his claimed disabilities from undertaking on-the-job training during the next two years.
The Tribunal has reached this decision, preferring the medical opinions of Doctors Harvey-Sutton, Murphy and Menashi. While the Tribunal notes Mr Baden's submission that his treating general practitioners, Dr Hanna and Dr Hedge know him better and have treated him for years, the difficulty for the Tribunal in accepting Mr Baden's submission is that Dr Hanna's findings were incomplete for the purposes of determining Mr Baden's legislative eligibility for a Disability Support Pension and Dr Hedge's reports, while more fulsome in their findings, made determinations based on conditions which the Tribunal could not take into account for the reasons expressed above. The better course for Mr Baden would be to consider claiming these more recently reported conditions and having them assessed, at the same time bringing himself under the ameliorating provisions of subsection 94(4) of the Act.
Accordingly, in the circumstances and for the reasons expressed above, the Tribunal determines that Mr Baden does not satisfy subsection 94(1)(c) of the Act as defined in subsection 94(2) of the Act and accordingly the decision to cancel his Disability Support Pension is correct. Under section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review of the Social Security Appeals Tribunal.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock
Signed:         .....................................................................................
  Associate
Date/s of Hearing  6 October 1999
Date of Decision  20 April 2000
Representative for the Applicant              Mr Baden was self-represented
Representative for the Respondent        Mr B Slattery, Departmental Advocate