Berka and Secretary, Department of Family and Community Services

[2000] AATA 197

DECISION AND REASONS FOR DECISION [2000] AATA 197

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No     Q99/747

GENERAL ADMINISTRATIVE DIVISION          )          

Re      GABOR BERKA     

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Dr EK Christie, Member     

Date15 March 2000         

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.         

(Sgd)  EK Christie 
  MEMBER
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether continuing inability to work.
Social Security Act 1991 ss 94(1), (2), 100(3)
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

15 March 2000        Dr EK Christie, Member                 

1. This is an application by Gabor Berka to review a decision of the Social Security Appeals Tribunal ('the SSAT') made on 22 June 1999, that Mr Berka did not qualify for disability support pension.  The SSAT affirmed the decision of an authorised review officer made on 19 April 1999 which had affirmed the decision made by a Commonwealth Services Delivery Agency (Centrelink) delegate of the Secretary to the Department of Social Security on 7 January 1999.

2. In reaching its decision, the SSAT concluded that:

   "Mr Berka's medical conditions do not attract a rating of 20 points under the Impairment Tables and he does not satisfy the provisions of section 94(1)(b) of the Act. Mr Berka does not qualify for DSP as he does not fulfil the requirements of section 94".

A consequence of this conclusion was that the SSAT did not have a need to consider whether Mr Berka satisfied the "continuing inability to work" provisions [subsection 94(1)(c)] of the Social Security Act 1991 ('the Act').

1. At the hearing the applicant, Mr Gabor Berka represented himself.  The respondent was represented by Mr R McQuinlan, a Departmental Advocate.

2. At the hearing the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal 1975 (the "T" Documents") (Exhibit 1) and the following exhibit:

• Exhibit 2            Medical reports obtained by "Summons to Produce" (27.8.99)

  (F1-F5; D2-D9)

1. At the end of the hearing Mr Berka agreed to provide to the respondent a copy of a report he held titled, Work Capacity Assessment, undertaken by Proactive Injury Management on 16 September 1998 ("Supplementary Report").  This assessment was undertaken 6 days after his back injury whilst still an employee of the Brisbane City Council ("the BCC").  A copy of the respondent's submissions in this report was received by the Tribunal on 10 December 1999.  In addition, the respondent forwarded a copy of these submissions to Mr Berka on 9 December 1999.
   Issues before the Tribunal

2. Mr Berka applied for disability support pension (DSP) on 5 October 1998 (Document T7).  At the outset of the hearing the Departmental Advocate conceded that Mr Berka met the 20 points impairment threshold test at the date of the hearing.  Accordingly, the only issue for the Tribunal to decide was whether Mr Berka had "a continuing inability to work".
   Evidence of Gabor Berka

3. Mr Berka was aged 50 and had left school aged 15 without completing Year 9.  He had been gainfully employed over time as a labourer, factory worker, truck driver, supervisor of a concrete pumping company and as a BCC bus driver.  He was employed by the BCC for two periods totalling 10 years.  He was made redundant by the BCC, ending work in October 1998.

4. Mr Berka described his existing medical conditions as diabetes, carpal tunnel (left hand) and a lower back injury;  the diabetes was now stabilised.  The lower back injury arose from a road rage incident whilst he was driving a BCC bus.  As a consequence he suffered a "jarred back" which increased in severity over time.  The injury resulted in his being assigned to despatch work at the bus depot rather than bus driving.

5. During cross-examination by the Departmental Advocate, Mr R McQuinlan, Mr Berka stated:

• that, notwithstanding his condition, he could drive a car.  However, the length of time he could do so varied from 10 minutes to a maximum of 40 minutes.  He drove a car about 4 times a week.  When he drove for more than 30 minutes he needed to "stretch out" to relieve pain;

• that as a consequence of his back injury he could not continue work as a bus driver as each shift involved 4½ - 5 hours of actual driving;

• that he had held a temporary position as a despatch clerk with the BCC for the first two months he was on compensation.  This opportunity arose because the existing employee was on leave.  The position involved recording bus movements and routing buses.  However, he said the BCC Manager had told him that his back condition made him unsuitable for this position;

• that he became "pretty stiff" if he had to sit down for 2 – 3 hours without having any opportunity to get up and to move around;

• that he could only work at a job where he had to remain sitting down for about 30 minutes.  He then needed to stand up for 10 minutes; and

• that although he acknowledged that there may be some uncertainty whether he could work as a despatch clerk, he nevertheless held an honest belief that he could not do work of this nature.

1. Mr Berka said that he was happy to work if he were capable of doing so but believed that he was not capable of doing many hours of work.

2. Finally, Mr Berka stated that he had constant "staggering" pain from his back condition and could obtain no relief from physiotherapy.  He had hydrotherapy 5 – 6 times, and this led to some improvement.  However, he could not afford ongoing treatment.
   Contentions and Submissions of the Parties

3. Mr McQuinlan submitted that the Health Services Australia ('HSA') medical reports (Documents T13 and T24), together with Dr Downes' report (F5, Exhibit 2), made it very clear that Mr Berka could work if employed in a sedentary job with the potential to move around.  Mr McQuinlan contended that by applying these reports, Mr Berka was still capable of light sedentary work irrespective of whether he had 20% or 50% impairment.

4. Mr McQuinlan referred to Mr Berka's evidence that he would like to work but that he was uncertain whether he could do so.  Moreover, the applicant's statement that he would like "to give it [work] a go" if he were permitted to move around, e.g. a toll booth operator.

5. Furthermore, Mr McQuinlan contended that there were no educational barriers for Mr Berka to find work as either a toll booth operator, a gate keeper or as a despatch clerk.

6. Mr McQuinlan referred to professional opinion contained in the following medical reports to found his submissions with respect to Mr Berka's ability to work:

• Dr Mills (1 October 1998;  Document T6 Folio 30) – "unable to work"

• Dr Mills ( 29 October 1998;  Document T8 Folio 59) - "that Mr Berka would 'never' be able to return to his usual job;  that it was 'unknown' whether Mr Berka would be able to return to any kind of full-time work (for at least 30 hours per week);  and that Mr Berka could now return to any kind of part-time work (for at least 8 hours per week)."

• Dr Lee (5 January 1999;  Document T13 Folio 78) – "Medically he is capable of light sedentary work with positional variation."

• Dr Downes (29 January 1999;  Exhibit 2, F4 p.4) – "I would consider that there are quite a few jobs around of that nature for unskilled workers.  You would appreciate though that they might be hard to get.  Even a person with the limitations imposed by spine of a type seen in Mr Berka, would be able to cope with performing a job such as sitting at a gate supervising the entrance and exit of trucks from a warehouse or a timberyard, etc.  This is what I mean by a borderline case."

• Dr Mills (17 February 1999;  Document T20 Folio 88) – "I feel that Mr Berka is totally unable to work."

• Dr Toft (25 March 1999;  Document T24 Folio 103) – "In my opinion, this client is not fit for his previous work as a bus driver nor any other similar occupation.  However, with Back Rehabilitation and retraining, he would be capable of permanent light semi-sedentary work as suggested by Dr Lee in his assessment."; and at Folio 96 that he was "not certain" whether Mr Berka was able to work for at least 30 hours per week.

• Dr Fish (27 April 1999;  Exhibit 2, D8 p.7) –

  "4.  Having regard to Mr Berka's education, training and experience, please advise on:

  (i)What other occupations Mr Berka could perform on a full-time basis; and

  I consider that Mr Berka is unfit to perform any employment for which he is educated, trained or experienced on a full-time basis.

  (ii)       What other occupations Mr Berka could perform on a part-time basis.

  In view of his limited education, training and experience, I consider that there is no part-time employment he could usefully perform.

  5.If you consider that due to illness or injury Mr Berka will never be able to work again in an occupation for which he is suited by his education, training and experience, please advise your reasons in arriving at this conclusion.

  In my opinion, he will never be fit to return to any occupation for which he is suited by education, training or experience on the basis of his ongoing medical conditions.  As noted above, the reasons for this are:

  (a)His poor education, training and background in that he has only ever worked as a labourer or in driving duties.

  (b)His medical conditions make him unsuitable for any driving duties now or at any time in the foreseeable future.

  (c)His medical conditions are such that they are liable to be aggravated by any labouring duties."

1. Mr McQuinlan submitted that review and assessment of these medical reports indicated that Mr Berka's ability to work had deteriorated from the time his application for DSP had been made. However, he submitted, by reference to subsection 100(3)(c) of the Social Security Act 1991 that the relevant medical reports to assess Mr Berka were those undertaken over the three month period after the application was made.

2. Mr McQuinlan then referred to the Work Assessment Report ("Supplementary Report") and stated that the report indicated:

   ·     "…that Mr Berka had a sitting tolerance of 30 minutes, he has low back discomfort and needed to change his posture during sitting activity.  He completed an activity involving sustained standing for 1 hour with no problems reported or difficulties observed.  The report goes on to recommend that Mr Berka identify a suitable job goal within his capacities but that he should avoid sustained static work postures."

   ·     "The report suggests that although Mr Berka is no longer fit for his usual work as a bus driver, the specialists are of the opinion that he could engage in other types of employment subject to his physical limitations."

3. Based on the opinion in the Supplementary Report, it was Mr McQuinlan's contention that Mr Berka's claim for DSP should not be granted.  Rather, he submitted that the Supplementary Report supported the assessment of Dr Downes (Exhibit 2) that Mr Berka would be able to manage a wide variety of jobs.

4. Mr McQuinlan concluded that the opinion contained in the Supplementary Report, together with the medical reports of Drs Lee, Toft and Downes, provided clear evidence that Mr Berka had an ability to work if given the opportunity of a sedentary job with the potential to move around.

5. In his final address, Mr Berka stated:

• in response to a Tribunal question, that his medical examination with the HSA medical officer (Dr Lee, Document T13) was very brief.  He said that Dr Lee examined x-ray reports and the total time of his examination was only about 5 minutes;

• that he could not work, or stand, or walk, for too many hours because of back pain;

• that his employment prospects would be affected because of his back injury, i.e. the continuity of his employment could not be assured because he could go on compensation anytime; and

• that Dr Mills' opinion should be preferred.

Consideration of the Issues

1. The objective of the Tribunal is to review administrative decisions on their merits and in accordance with the law at all times.

2. The relevant statute is the Social Security Act 1991 ('the Act') and the relevant provisions for deciding this application for review are as follows:

• SECTION 94 – QUALIFICATION FOR DISABILITY SUPPORT PENSION – CONTINUING INABILITY TO WORK

"94(1)   [Qualification – continuing inability to work]       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…"

and

• "94(2)       [Meaning of 'continuing inability to work']          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."

  and

• "100(3)     [Day person first qualified]  If:

  (a)       a person lodges a claim for a disability support pension; and

  (b)the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and

  (c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

  the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

1. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, Davies J stated at 674:

   "Regard must always be had to the nature of the decision under review …. This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision.

In Mr Berka's case, the decision under review was a decision refusing to grant a pension following an application for DSP being made on 5 October 1998.

1. The Tribunal agrees with the Departmental Advocate's proposition (see paragraph 16) that Mr Berka's condition has deteriorated over time.  The Tribunal reaches this conclusion after considering professional opinion over the period 2 June 1998 ('Supplementary Report') to 27 April 1999 (Exhibit 2 D8).

2. With respect to the statutory meaning of "continuing inability to work" and the relevant provisions of the Act [subsections 94(2)(a) and 94(2)(b)], the Tribunal has considered professional opinion in the medical reports (see paragraph 15), as well as the nature of his condition given by Mr Berka in his evidence.

3. In addition, in accordance with Section 100 of the Act, the Tribunal has considered medical opinion in relation to his ability to work up to the period of 3 months following the date of application for DSP (5 October 1998).

4. The Tribunal concludes that, on the balance of probabilities, the impairment would not be sufficient to prevent Mr Berka from doing any work within the next 2 years.

5. Furthermore, the Tribunal concludes that the nature of Mr Berka's impairment would not be sufficient to prevent him from taking any form of on-the-job training within the next two years.

6. Based on the above findings, the Tribunal has no alternative other than to conclude that Mr Berka was not eligible for DSP at the time he applied (5 October 1998).

7. However, given the Tribunal finding that Mr Berka's condition has deteriorated over the period 2 June 1998 to 27 April 1999 (paragraph 24), the Tribunal makes the observation that Mr Berka should now make a new application for DSP in order to enable all the available medical evidence (including the most recent) to be included in determining his eligibility for DSP.

8. For all of the above reasons the Tribunal affirms the decision under review.

   I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

   Signed:         Emma Oettinger
     Associate

   Date/s of Hearing  3.12.99
   Date of Decision  15.3.00
   Counsel for the Applicant         
   Representative for Applicant   Applicant appeared in person
   Counsel for the Respondent     
   Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate