Bitairek; Secretary, Department of Family and Community Services
[2002] AATA 744
•30 August 2002
DECISION AND REASONS FOR DECISION [2002] AATA 744
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/828
GENERAL ADMINISTRATIVE DIVISION )
Re Secretary, Department of Family and Community Services
Applicant
And Mehdi Bitairek
Respondent
DECISION
Tribunal Ms N Isenberg, Member
Date30 August 2002
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal.
..............................................
[SGD] N Isenberg
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – physical impairment – entitlement to disability support pension – whether the Applicant had an impairment rating of 20 points or more under the impairment tables – whether the Applicant had a "continuing inability to work"
LEGISLATION
Social Security Act 1991 – sections 94(1), (2), (3), (4), (5), (6)
Social Security (Administrative) Act 1999 – sections 4(10), (2), (3), (4), (5), (6), (7)
CASE LAW
Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444
AAT & Secretary, Department of Family and Community Services and Bell [1998] AAT 878
Hamal v Department of Social Security (1993) 30 ALD 517
REASONS FOR DECISION
Ms N Isenberg, Member
DECISION UNDER REVIEW
The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Applicant, the Secretary, Department of Family and Community Services ("the Department") dated 18 September 2000 (T8) as affirmed by the Authorised Review Officer on 19 February 2001 (T13) to refuse Mr Bitairek 's application for the disability support pension. On 16 May 2001 the Social Security Appeals Tribunal ("the SSAT") decided (T2) that Mr Bitairek met all the criteria for the Disability Support Pension ("the DSP") and had done so since the date of his claim. The Applicant has sought review of that decision.
ISSUE BEFORE THE TRIBUNAL
This application concerns a claim for DSP made on 11 August 2000. Entitlement to DSP is governed by section 94 of the Social Security Act 1991 ("the Act"), which provides as follows:
"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. Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.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.Note: For work see subsection (5).
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.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:
"educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
"on-the-job 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.Person not qualified in certain circumstances
94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.
Note: a person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (see subsection 48(3))."
Insofar as section 94(1) is concerned, there was no dispute that the Respondent does have a physical impairment in relation to his back and hip, he is greater than 16 years of age and he is an Australian resident.
The issues in dispute in the current application, however, are whether the Respondent had an impairment of 20 points or more under the impairment tables and, if so, whether he had a "continuing inability to work".
TIME FOR CONSIDERATION OF ENTITLEMENT TO DSP
Schedule 2, clause 4 of the Social Security (Administration) Act 1999 provides:
"4 Start day—early claim
(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.(3) If:
(a) a detained person makes a claim for a social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) the person becomes qualified for the payment within 3 weeks after the claim is made;
the claim is taken to be made on the first day on which the person is qualified for the payment.(4) Subclause (3) does not have effect in relation to a claim for a crisis payment or for a social security pension or benefit.
(5) If:
(a) a person makes a claim for a newstart allowance; and
(b) the person is in receipt of youth allowance or austudy payment; and
(c) the claim is made not earlier than 4 weeks before the day on which, in the opinion of the Secretary, the person will become qualified for a newstart allowance;
the claim is taken to be made on the day on which the person becomes qualified for that allowance.(6) If:
(a) a person makes a claim for a newstart allowance or youth allowance; and
(b) when the claim is made, the person is serving a liquid assets test waiting period;
the claim is taken to be made on the first day on which the person is qualified for a newstart allowance or youth allowance, as the case may be.(7) In this clause:
detained person means a person who:
(a) is in gaol; or
(b) is undergoing psychiatric confinement because the person has been charged with an offence."
Therefore, the Tribunal had to consider if the Applicant was entitled to the DSP on 11 August 2000, or within 13 weeks of that date.
APPEARANCES
A hearing was held before the Tribunal on 9 July 2002 at which the Applicant was represented by George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink and the Respondent was represented by Mr C Colbourne, of counsel, instructed by Ms E Biok of the Legal Aid Commission.
BACKGROUND
Mr Bitairek was born in Lebanon in 1954 and completed 7 years of schooling in that country, without gaining qualifications. On leaving school he worked for some years as an unqualified mechanic and as a driver for a soft drink company. He migrated to Australia in 1977 and worked in an aluminium factory for ten months. He then went back to Lebanon to marry and he and his wife returned to Australia.
He worked at BHP wire factory in Five Dock for 2½ years until, in the early 1980's, he suffered a work injury. An operation was performed on his right knee by Dr Medhat Guirgis, following which he received a compensation payment of approximately $20,000. From then until 1999 he unsuccessfully tried to find work as a driver and spent large periods on Unemployment Benefits.
10. In 1999 he was on trial as a truck driver for Power Waste and Recycling but on 11 September 1999 he suffered a car accident in George Street, Sydney, at 12 am when a car hit him on the right side.
He was taken to St Vincent's Hospital and was hospitalised for eight days. Surgery was performed and a pin was placed in his right leg.
11. On 11 August 2000, Mr Bitairek applied for the DSP but on 18 September 2000, his application was rejected. He had been assessed by Dr Yu of Health Services Australia (HSA) who determined that he had an impairment rating of 20 points, comprising of 10 points for impairment in his thoraco-lumbar spine and 10 points for impairment in his right lower limb. However Dr Yu considered that Mr Bitairek did not have a continuing inability to work and was fit for light work.
12. On 6 November 2000, Mr Bitairek applied to have the rejection reviewed by the Authorised Review Officer ("the ARO"). He provided a further medical report from his general practitioner Dr Qidwai dated 2 November 2000. On 28 March 2001 the Authorised Review Officer confirmed Centrelink's decision to reject Mr Bitairek's DSP Application.
13. On 18 April 2001 Mr Bitairek appealed to the SSAT and on 10 May 2001, the SSAT set aside the ARO's decision and determined that Mr Bitairek was eligible for the DSP. That Tribunal accepted the previous finding that Mr Bitairek had impairment rating of 20 points. The Tribunal found that Mr Bitairek's condition would last for the next two years and that he could not perform work tasks.
14. On 15 June 2001 the Secretary of the Department of Family and Community Services appealed the SSAT decision to this Tribunal.
EVIDENCE: DOCUMENTS
15. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.
16. In addition, the following documents were tendered:
EXHIBIT DOCUMENT DATE
TD1 T-documents T1-T17 13/07/2001
A1 Applicant's Statement of Facts & Contentions 27/06/2002
A2 Letter from Dr Keen 09/05/2002
A3 Amended Statement of Issues 11/12/2001
A4 Medical Report from Dr Gliksman 06/11/2001
A5 Medical Report from Dr Kamenyitzky 11/11/2001
R1 Respondent's Statement of Facts & Contentions 04/07/2002
R2 Medical Report from Dr Harvey-Sutton 20/02/2002
R3 Addendum Report from Dr Harvey-Sutton 07/03/2002
R4 Report from Hossain Tefaili Chiropractor 14/01/2002
R5 Report from Hossain Tefaili Chiropractor 05/07/2002
R6 Treatment Cards 20/11/1999
R7 Hand Written Note from Dr Harvey-Sutton Undated
R8 Guides to Evaluation of Permanent Impairment Undated
APPLICANT'S EVIDENCE
17. No oral evidence was called by the Applicant.
EVIDENCE: THE RESPONDENT
18. The Respondent gave sworn evidence and was cross-examined on behalf of the Applicant. Questions were also put to the Respondent by the Tribunal.
19. Mr Bitairek gave evidence that he had come to Australia in about 1978. He had had 6 or 7 years schooling in Lebanon. He had worked there as an apprentice mechanic for a couple of years and was a delivery boy for a soft drink factory.
20. When he first arrived in Australia he worked as a machinery operator and a forklift driver for a year.
21. He then went overseas to get married. On his return he worked in a meat factory on the production line. For about 3 years he worked for BHP making razor wire. He had an accident at work in about 1980 and his leg was operated on.
22. After that, when employers found out he had a problem, jobs would 'disappear'. He went overseas again for 11 months.
23. In 1985-6 he had a motor vehicle accident when another driver failed to obey a give-way sign. He hit his head on the windscreen and had neck and shoulder pain. Although Dr Yu had noted that he continues to experience some intermittent pain in those areas he said he no longer has much pain and it is not much of a problem.
24. He kept looking for jobs without success until, in 1999 he got a job as a truck driver through a friend. During the trial period he was hit by a car in George Street and was knocked unconscious. He was 7-8 days in hospital and he had another operation on his right leg.
25. After discharge from hospital he went for physiotherapy, hydrotherapy and had to take lots of hot showers. He continued to attend St Vincent's Hospital on an outpatient basis until November last year.
26. He still has the physiotherapy twice a week and goes to hydrotherapy once per week.
27. Before the accident he was fit – capable of being truck driver. Since the operation on his hip he has suffered a lot of pain in his low back and right leg. He described the pain as 'constant really severe pain'. Cold weather affects it 'very severely' and if he moves too much.
28. He said that any movement, especially if he carries heavy things or if he has to push things, is painful. It affects his capability to lift, especially heavy things.
29. As to his right leg, he was unable to differentiate between the pain in his leg and his low back pain – 'pain is pain'. If he carries anything heavy he feels 'weak'. Even to cross the road in a hurry is difficult.
30. He said he can stand for no more than 10 minutes and relies on his left leg. As to walking, if he has to walk for more than 15-20 minutes he feels 'paralysed' around the back and right leg.
31. In his claim form he said that his concentration is affected and he said he can only recall some things after a few days.
32. His sleeping is affected in that he is unable to stay on his right side and has to change positions several times a night. As a result he feels depressed during the day because of problems with his sleep, that he has no job, his whole situation and that he has pain all day.
33. As to his ability to sit for long periods he said that he has to get up and walk around all the time (as was evident several times during the hearing). The best thing is to lie down.
34. He finds it hard to climb stairs and is better going down than up.
35. At the time he made his claim he was taking Panadeine forte and Brufen daily. He presently takes 2-3 Panadeine forte about once a day, 3-4 days per week. He takes one Brufen 'for nerves' 1-2 per week. For severe pain he uses suppositories. On more than one occasion he had to call the doctor because of unbearable pain and once he was given an injection.
36. Around the home he does nothing. His wife takes out the bins and has to mow the lawn. She is not well herself and it upsets him that she has to do it. He is unable to do these tasks because they require pushing heavy objects. He denied that having his wife work had anything to do with 'his culture', as he was asked in cross-examination. Before the accident he would do the garden and put out the bin. It upsets him to see his wife doing everything. He might help with the washing up, providing he doesn't have to stand for more than about 5 minutes. One son is a panelbeater and understands car mechanics and Mr Bitairek stands beside him while he maintains the car.
37. After he left hospital his wife had to help him to do everything. He presently has no problem in dressing. He sits down to put on his trousers, shoes and socks. He can't put pressure on his right leg. He is able to attend to his personal hygiene.
38. As to social activities Mr Bitairek said that he has friends who come and visit. He does not regularly attend the mosque – one reason being that it is too far away. When he does go he can pray on his knees but it hurts.
39. He is able to drive short distances only, for example to the shops which are about 5 minutes away. He forces himself to drive further if he has to. He travelled to the hearing by public transport but was 'always in pain'.
40. He was asked about his capability in English. He said he can read some English but has difficultly with some words. He reads, for example, about the football but he requires assistance to fill out forms.
41. He can speak English but finds difficulty in expressing himself precisely. He has difficulty writing in English. He is also illiterate in Arabic.
42. He has never used a computer and has no keyboard skills. Before the accident he had done some English courses through Centrelink. He went for 8 hours a day, once per week for 3 months. He actually did not find it of much help in improving his English. While with BHP he also went for English classes twice per week.
43. He made some enquires about a taxi driver's licence but this was not followed through, although it was unclear as to why this had not been pursued.
44. He has not looked for work since the accident because he cannot drive long distances, because of the pain, and because of his inability to manage stairs. He needs to be able to get up and down and move around.
45. He said he wants to work if he could find something he could do. He would do 'anything before' and now it is too difficult. He said he would drive a taxi, or a truck - 'anything' if he were back to normal.
46. He was asked if he could work at a petrol station and he said he could if he could stand up and sit down all the time.
47. He was asked in cross-examination if he had undergone surgery for his back, and he said he would never have an operation on his back.
48. He confirmed that he always walks with a limp. His attention was invited to Dr Gliksman's report of 6 November 2001 wherein the doctor said he observed Mr Bitairek to walk rapidly without limping. Mr Bitairek denied that that was the case and said that maybe the doctor had seen him standing.
49. He was asked about the circumstances of Dr Qidwai's report of 2 November 2000 (T9), shortly after he lodged his claim and in which the doctor had said he would be able to undertake 8 hours work per week in 12-24 months time. He said he saw the doctor and told him he needed a medical certificate because Centrelink said he had to look for a job. He recalled the doctor said he was not suitable for heavy lifting, pushing or pulling.
50. He said he would like to participate in further training. Centrelink sent him on an English course 3-4 months ago. Centrelink officers agreed that he might get tired and so it was acceptable if he had to take a break and alternate sitting and standing, and lying down if necessary. He went a couple of times and only lasted an hour or so and had to go home and lie down because of pain. The sessions were to be for a total of 400-500 hours, 9am to 4 pm daily. He was told to stop going.
EVIDENCE: DR HARVEY-SUTTON
51. Dr Harvey-Sutton told the Tribunal that Mr Bitairek's problem is the chronic pain which originates from his hip. She said the brain is unable to distinguish the source of the pain so it is not extraordinary that Mr Bitairek cannot describe the source of the pain.
52. As his major problem is his pain Table 20 is more appropriate to assess impairment ratings. On reviewing the Table she considered that 20 impairment points to be appropriate. She arrived at this view by eliminating 15 points, because Mr Bitairek's symptoms were greater than 'mild to moderate', whereas 30 points was too high a rating.
53. Dr Harvey-Sutton was referred to her report of 20 February 2002 wherein, in answer to the question: To what extent do these impairments affect Mr Bitairek's capacity to engage in full-time paid employment?
54. Dr Harvey-Sutton referred extensively to her use of the terms 'impairment' and 'disability'. She referred to the terms as used by the American Medical Association in its Guides to Evaluation of Permanent impairment. (Exhibit R7) She said she used those terms as follows:
·Impairment = any loss or abnormality of physical, psychological or emotional status or function.
·Disability = alteration of an individual's capacity to meet the physical, social or occupational demand or statutory or regulatory requirements, because of an impairment.
55. The doctor was asked in cross-examination to interpret her views according to the material in the Tables, and not other sources. She confirmed her rating of 20 under Table 20.
56. The doctor said that because of Mr Bitairek's age, lack of English skills, no computer skills and his job experience in the past (labourer, mechanic, machine operator and driver) - he was restricted in the kind of work he could do. The problem with truck driving – his last work - was that it involved getting in and out of the vehicle, sitting for long periods, negotiating high steps and having to pack and tie down loads. Being a mechanic involved heavy lifting, repetitive squatting and operating in a confined space. A machine operator would entail lifting and twisting and standing. A labourer was required to engage in heavy lifting and manoeuvring. She thought he might be able to work at something for an hour per day, with breaks, to a total of 5 hours per week.
57. She was asked what other roles might be available to him in Australia. In view of his experience she did not think he could do anything. She was particularly asked If he could operate a console or do light factory work. She said that she did not think so because he had no skills. She also referred to his physical presentation which she regarded as poor. This was especially a factor in jobs that entailed public interaction.
58. She was asked about his ability to undertake further training. Again she did not think this possible. In cross-examination it was suggested that her response to 'Do you think that Mr Bitairek is capable of undertaking retraining within the next two years? As indicated above, although he appears to have undertaken retraining in the past, this did not materialise into gaining remunerative employment.' was equivocal. She said she considered him incapable of undergoing retraining that would materialise into gainful employment. Although he had undergone numerous English courses and has been in Australia for many years he is still not proficient in English, nor is he likely to be.
59. Mr Bitairek has not worked for years and he has difficulty sitting, standing and with his attention, this being due to his pain and lack of endurance. There is a cycle of a lack of physical endurance which produces general poor physique and muscular wasting which in turn produces poor endurance. This deconditioning, while reversible to some degree, in so related to his pain, that it is to be considered long term.
60. She was asked about 'Do you consider that the impairments of themselves are sufficient to prevent Mr Bitairek form working? It is difficult to determine whether the impairments of themselves are sufficient to prevent him from working. However, on clinical presentation his hygiene is poor, he is thin and appears debilitated with general muscle deconditioning, which appeared to be sequelae form him doing nothing but lying about, which is probably related to the pains in his back and right thigh/hip.'
61. In particular she was asked about her reference to 'poor hygiene'. She said that this was a clinical sign, that is, part of his presentation, which was consistent with being generally debilitated.
62. She was also asked about the reference to 'thin' and if this meant employers did not employ thin people. She said that employers have told her they looked to how a person looks overall.
63. The doctor said she was confident, in February 2002 when she saw him that Mr Bitairek had been in similar condition in August 2000, that is at the time of his claim. She said there was no reason for a material change from that time until the time she saw him.
64. The doctor said she was aware of the other reports in relation to Mr Bitairek at the time she examined him. She was aware, in particular that Dr Yu and Dr Gliksman had considered Mr Bitairek to be overstating his symptoms. She said that, being aware of their views, she took particular care in her examination of Mr Bitairek. She considered his physical bearing to be consistent with his not doing anything and his hands were not work-hardened.
SUBMISSION: APPLICANT
65. As to whether Mr Bitairek has an impairment rating of at least 20 points under the Impairment Tables, the Applicant contended, based on the latest HSA report, that Mr Bitairek's medical conditions fail to attract a combined impairment rating of 20 points. The Applicant contended that, at most, there would be a combined impairment rating of 10 points from Table 20 for chronic pain. Consequently, it was submitted, the Respondent fails to satisfy section 94(1)(b) of the Act.
66. In relation to Mr Bitairek's right hip fracture the Applicant contended that a nil rating under Table 4 is appropriate for this condition. The Applicant relied on:
·The report of Mr Yuen, dated 6 July 2000, wherein the doctor noted that Mr Bitairek's hip pain and stiffness had been relieved considerably by physiotherapy, although there was still some tenderness over the scar (T4).
·The report of Dr Yu, dated 13 September 2000 wherein Dr Yu notes Mr Bitairek as having loss of mobility and stability with moderate interference with walking (T7, p47).
·The report of Dr Fitzgerald, dated 9 March 2001 wherein the doctor found:
"There is an old united fracture of the neck of the femur. There is a pin and also a pin and plate in situ. The position is good. (T15, p69)."
·The report of Dr Gliksman, dated 6 November 2001 in which he reported Mr Bitairek was observed to walk rapidly without an apparent limp (Exhibit A4, page 4). Dr Gliksman also reported:
"The loss of hip flexibility is of a mild degree. It is possible that this is accompanied by pain when attempting full range of movements or repetitive movements of the hip, or when weight bearing for a prolonged period of time a (sic) described. The prognosis is for stability if no avascular necrosis has occurred" (page 5)."
·The report of Dr Kamenyitzky, dated 16 November 2001 (Exhibit A5). After considering Dr Gliksman's report, Dr Kamenyitzky found a nil rating as being appropriate due to Mr Bitairek's normal mobility (page 6).
·The report of Dr Harvey-Sutton, dated 20 February 2002 in which Dr Harvey-Sutton agreed with Dr Gliksman in that the anatomical position appears preserved with no evidence of avascular necrosis (Exhibit R2, page 3). She also found no deformity or other unusual features and almost full range of movement (page 4).
·The report of Dr Keen, dated 9 May 2002 (Exhibit A2) who, after considering the X-ray reports of 9 March 2001, stated:
"There is thus no radiological evidence of any condition expected to give rise to significant symptoms or disability, although some mild discomfort and stiffness may be expected in the hip. Objective clinical findings (those not requiring active examinee cooperation) such as localised muscle wasting from disuse, or neurological changes from nerve root compression are absent. His limitations thus appear related to pain rather than specific functional loss" (page 2)."
67. In relation to Mr Bitairek's back pain the Applicant contended that a nil rating under Table 5.2 is appropriate for this condition. The Applicant relied on:
·The report of Dr Donohue, dated 7 June 2000 wherein the doctor stated:
"The alignment is normal. Vertebrae are normal in contour and disc spaces of reasonable height. The facet and s.i joints are normal. No focal abnormality was identified. (T3)."
·The treating doctor's report of Dr Qidwai, dated 1 August 2000 who found back pain and stiffness (T5, p10).
·The report of Dr Yu, dated 13 September 2000 who noted Mr Bitairek as having constant back pain (T7, p46).
·The report of Dr Gliksman, dated 6 November 2001 who reported:
"Examination of the spine revealed a normal lumbar lordosis. No abnormal kyphosis was observed. No scoliosis was observed. No parathoracic or paralumbar muscular spasm was seen, during today's examination (page 4 of his report)."
·Dr Gliksman also stated that Mr Bitairek was able to seat himself and rise rapidly from a seated position and was able to remove and replace his shirt, shoes and socks without any problems (page 4). Dr Gliksman indicated evidence of significant functional overlay in relation to the lumbar spine (page 5 of his report).
·The report of Dr Kamenyitzky, dated 16 November 2001. In light of Dr Gliksman's assessment, Dr Kamenyitzky finds a nil rating as being reasonable (page 5).
·The report of Dr Harvey-Sutton, dated 20 February 2002 in which Dr Harvey-Sutton agrees with Dr Gliksman that a broad bulge at L4/5 and a small posterior bulge at L5/S1 which are both not impinging upon any neural element is not unusual in a symptomatic person of Mr Bitairek's age (page 3 of her report).
·The report of Dr Keen, dated 9 May 2002. There Dr Keen notes from the CT scans that there is only minor disc bulging with no evidence of root pressure, spinal canal narrowing or other degenerative changes which are normal for Mr Bitairek's age (page 2).
68. As to Mr Bitairek's neck pain the Applicant contended that a nil rating under Table 5.1 for this condition is correct. The Applicant relied on:
·The report of Dr Donohue, dated 7 June 2000 in which Dr Donohue found:
"Mild prominence of the disc at each level, but no evidence of focal disc herniation or significant compression of the thecal sac. (T3)."
·The report of Dr Yu, dated 13 September 2000 wherein the doctor assigned a nil rating as Mr Bitairek had normal range of neck movement (T7, p45)
·The report of Dr Fitzgerald, dated 9 March 2001, in which Dr Fitzgerald noted:
"Scans were performed at the L3/4, L4/5 and L5/S1 disc spaces.
No sign of a focal disc herniation at any level. Minimal disc bulging is present at the L4/5 level. Spinal canal and exit foramina are of normal width. No sign of degenerative change at the apophyseal joints" (T15, p69)."
69. The Applicant disagreed with Dr Harvey-Sutton's allocation of 20 points for the hip and back conditions. It was submitted that there was an apparent degree of inconsistency in the recorded examination findings, in particular with the range of movement limitation. In addition, there was an absence of any specific radiological or objective clinical evidence of significant pathology.
70. Having made those submissions, the advocate for the Applicant submitted that, in the circumstances, it would be preferable to use the Miscellaneous Table rather than the functional tables thereby assigning a rating of 10 points under Table 20 for Mr Bitairek 's chronic pain.
71. In relation to whether Mr Bitairek has a continuing inability to work because of his impairments it was contended on behalf of the Applicant that this is not the case. The Applicant relied on:
·The treating doctor's report of Dr Qidwai, dated 1 August 2000. The doctor considered Mr Bitairek would be fit for full-time work within 12-24 months (T5, p12).
·The claim form completed by Mr Bitairek, dated 11 August 2000 in which Mr Bitairek was unsure whether his medical impairment would prevent him from performing work (T6, p35). He also indicated that he would require support with respect to being able to work (T6, p36).
·The report of Dr Yu, dated 13 September 2000 in which the doctor found Mr Bitairek fit for light work immediately (T7, p51 & T7, p57).
·The report of Dr Kanapathipillai, dated 19 February 2001 wherein the doctor did not alter the previous HSA assessment by Dr Yu (T12, p64).
·The authorised review officer's discussion with Dr Qidwai, dated 23 March 2001, which recorded:
"Dr Qidwai then told me that he didn't see why Mr Bitairek couldn't do or at least attempt a light duties job provided the aforementioned restrictions were put in place, so long as Centrelink could find him this type of job. (T16, p71)."
·The report of Dr Gliksman, dated 6 November 2001 (Exhibit A4). There Dr Gliksman stated:
"...Mr Bitairek is fit to return to duties which do not require standing in a fixed position for more than 15 minutes without a 5 minute rest or movement break, which does not require lifting of more than 8kg on any repetitive basis or more than 10kg on any one occasion, and which does not require lifting from below knee height. He also should not use ladders, or use stairs repetitively. He should avoid walking prolonged distances or walking on uneven ground. Provided duties are available which meet these restrictions, it is my medical opinion that Mr Bitairek would be fit to work for 30 hours per week at a minimum and possibly full-time, on such restricted duties. (page 5-6 of his report)."
·The report of Dr Kamenyitzky, dated 16 November 2001 (Exhibit A5). Given Dr Gliksman's comments, Dr Kamenyitzky found Mr Bitairek fit for light to moderate work where he would not be required to stand for longer than 15 minutes. Suitable work would include light bench based assembly work and console operator.
·The report of Dr Keen, dated 9 May 2002 (Exhibit A2). There Dr Keen stated:
"Given the limited objective evidence of significant pathology, I would favour Dr Gliksman's opinion on Mr Bitairek 's work capacity. I note his GP in discussion with the ARO also considered this reasonable.... A return to at least sedentary employment on a full time basis would normally be the expected outcome. A program of physical reconditioning may now assist, but there is no evidence of any medical complication or condition that would prevent all (sedentary) employment.
I would thus have difficulty in accepting Dr Harvey-Sutton's conclusions, and in regarding Mr Bitairek as medically incapacitated for all full time employment. (page 2 of his report)."
72. As to Dr Harvey-Sutton's report the advocate for the Applicant said the doctor had assessed Mr Bitairek's impairments as only mildly affecting his capacity to engage in full-time employment. (Exhibit R2, page 6).
73. Furthermore, it was submitted that Mr Bitairek's impairment would not prevent him from performing full-time duties. Mr Bitairek had indicated on his claim form that his conditions sometimes affect his ability to sit, stand, walk, drive a car and use public transport (T6, p34). He has also stated that he has some difficulty in bending but has no problems when caring for himself (T6, p34).
74. It was the Applicant's position that it disagreed with Dr Harvey-Sutton's view that the combined effect of the impairments would preclude Mr Bitairek from undertaking full-time work within two years. It was the Applicant's submission that at the time of the claim, Mr Bitairek was found not to have a continuing inability to work according to Dr Yu and Dr Qidwai. Their opinions were later supported by Drs Kanapathipillai, Gliksman and Keen who also confirmed that Mr Bitairek continues to have the capacity to work. The Applicant contended that with some training, Mr Bitairek would be capable of undertaking light duties on a full time basis.
75. The advocate for the Applicant refuted the view put forward by Dr Harvey-Sutton that Mr Bitairek might be at a high risk of further accidents if he were to be employed (Exhibit R2, page 5). The fact that Mr Bitairek was accidentally hit by a motor vehicle while working does not imply that he might be at higher risk of further accidents if he worked. In this regard, it was submitted that Dr Harvey-Sutton's conclusion has no substance and should be given no weight.
76. The advocate for the Applicant further submitted that non medical factors are not to be taken into account pursuant to section 94(3) of the Act since the test is whether the Applicant is medically able to perform work or be retrained as required by subsections 94(1)(c) and 94(2) of the Act. Dr Harvey-Sutton stated that Mr Bitairek has a lack of work experience which would place him at a disadvantage in the workforce. The advocate for the Applicant also disagreed with Dr Harvey-Sutton's opinion that an employer would not employ him since he appears thin, his presentation is poor and he has poor hygiene (Exhibit R2, page 4). It was contended that such factors cannot be considered as his qualification for disability support pension must be determined strictly on medical grounds.
77. While Dr Harvey-Sutton noted Mr Bitairek as not having a very good grasp of English, it was the Applicant's contention that this poses no barrier in preventing him from working or being retrained within the next two years. Mr Bitairek's employment prospects would be improved if he attended the Commonwealth Rehabilitation Service or similar rehabilitation service for vocational assessment and rehabilitation or undertook a work training program or an English communication course to improve his oral English and writing skills.
78. The advocate for the Applicant submitted that Mr Bitairek's impairments do not prevent him from participating in educational or vocational training during the next two years. The Applicant relied on:
·Mr Bitairek's claim form, dated 11 August 2000 in which he was unsure whether his medical impairments would prevent him from undertaking study (T6, p35).
·The report of Dr Yu, dated 13 September 2000 wherein the doctor noted that Mr Bitairek's medical conditions would not prevent him from undertaking training and would benefit from training (T7, p52).
·The report of Dr Kamenyitzky, dated 16 November 2001 in which the doctor was of the view that Mr Bitairek's medical conditions would not prevent him from undertaking training and he would benefit from training (Exhibit A5, page 11).
79. The advocate for the Applicant further contended that Mr Bitairek's medical conditions do not prevent him from undertaking training within the next two years. The Applicant relied on the fact that Mr Bitairek had completed some courses at TAFE including an English course and a three-month mechanic course as reported in Dr Harvey-Sutton's report (Exhibit R2, page 2).
80. In summary, the Applicant conceded that while Mr Bitairek satisfied section 94(1)(b) in 2000, on the basis of the most recent HSA report, Mr Bitairek's medical conditions fail to attract a combined impairment rating of 20 points. In addition, it was the Applicant's position that Mr Bitairek is capable of performing light duties for 30 hours per week and of being retrained within the next two years.
SUBMISSION: RESPONDENT
81. It was contended that the SSAT had correctly found that Mr Bitairek had an impairment rating of 20 points and that he had a current inability to work for 30 hours a week.
82. It was contended that Mr Bitairek meets all the requirements for the Disability Support Pension as contained in section 94 of the Social Security Act 1991 in that:
·He has an impairment of 20 points or more
·His impairments of themselves prevent him from doing any work for 30 hours or more per week within the next two years
·Mr Bitairek's impairments of themselves prevent him from being retrained or attending educational or vocational training within the next two years
83. It was submitted that the reports of Dr Yu and Dr Harvey-Sutton provided clear evidence of Mr Bitairek's impairments. Mr Bitairek's impairment of 20 points were said to derive from either:
·an allocation of 20 points under Table 20 for miscellaneous conditions in that Mr Bitairek's pain in his back, hip and leg are such to cause "moderate to more severe symptoms with a decreased stability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue".
Or
·combined impairment of:
·his medical conditions relating to his spine as assessed under Table 5.2. Mr Bitairek has lost ¼ of the normal range of movement as well as suffering back pain with many physical activities; and
·impairments relating to his right lower limb resulting in an allocation of 10 points under Table 4. Mr Bitairek has a demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and sitting.
84. It was submitted that Dr Harvey-Sutton's evidence should be preferred to the reports by Dr Yu and Dr Gliksman as she had observed Mr Bitairek both in the waiting room and consultation room, and then conducted a thorough examination of his physical condition.
85. It was submitted that little weight should be given to the reports of Dr Kamenyitzky and Dr Keen as they did not personally examine Mr Bitairek.
86. Dr Gliksman indicated that Mr Bitairek requires a workplace where he is not required to stand for more than 15 minutes without a five minute rest, and which does not require using stairs or walking on uneven ground. He also noted at page 4 that Mr Bitairek regularly changed his position when seated. It was contended that employment that accommodated these requirements would only be found with a "benign employer".
87. It was contended that all the medical evidence confirms that Mr Bitairek's condition is stable but may deteriorate in the future and that Mr Bitairek's impairment is unlikely to improve within the next two years.
88. The work which Mr Bitairek has previously undertaken in Australia as a labourer and truck driver would not satisfy his current medical requirements that he has a position which requires him, when standing, to have frequent rest breaks and to avoiding heavy lifting and repeated bending and continually change his position when seated.
89. It was contended that Mr Bitairek's pain and limited mobility in his lower back and right leg would severely limit his ability to move around the workplace and Mr Bitairek would find it very difficult to sustain a work effort in the long term. His limited movement, constant pain, need for analgesia, frequent rest and regular changes in position would mean he was prone to poor concentration and sick leave or absenteeism.
90. In response to the Applicant's contention that non-medical factors are not to be taken into account pursuant to section 94(3) of the Act it was submitted on behalf of Mr Bitairek that the medical evidence on which the Applicant relied ignores the proper construction of the legislation. An assessment of Mr Bitairek's continuing "inability to work" must be made in accordance with the legislation as explained by Drummond J in Secretary of Department of Social Security v Pusnjak (1999) 56 ALD 444, where the Court held at 452 to 453 -
"[32] Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s94(2):
·As to s 94 (2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular Applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so: As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
·If so, the Applicant will satisfy the Secretary that he has the requisite continuing inability to work. If not, the Secretary must proceed to consider s 94(2)(b)(ii) and ask: As to s 94 (2)(b)(ii) If there is available training of a kind capable of fitting the claimant within a two year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within two years?
·If so, the Applicant will not be eligible for the pension. But if there is a two-year retraining course available to the claimant but his impairment is sufficient by itself to prevent him completing that course within that two-year period, he will qualify for the pension. Training that necessarily takes an able-bodied person longer than two years to complete is not training of the kind covered by this provision.
…
[38] … Section 94 (4) directs the decision-maker to the availability of work in the whole Australian labour market and prevents him from having regard to the availability of work for the pension claimant in his locally accessible labour market unless the claimant is 55 or older. But subject only to that restriction, a claimant's age, whatever it be, is a consideration which the decision-maker can, I think, properly take into account in determining whether the particular claimant meets the various requirements of s 94 (2) and thus has a continuing inability to work, ie, whether a class or classes of work which the decision-maker has identified as in fact available somewhere in Australia is work which the particular claimant has the existing capacity to perform and (if appropriate) whether the claimant can or cannot be retrained as envisaged by s 94(2)(b)."
91. It was submitted that Mr Bitairek meets the above test as follows:
·He is currently only skilled for work as a labourer and driver in Australia and is prevented from undertaking such employment because of his lower back and right limb impairments.
·Mr Bitairek would be required to undertake training in English language skills, computer skills before he would be able to gain employment in lighter duties. Such courses would in fact require training beyond two years.
·Mr Bitairek is prevented from undertaking the abovementioned training because of his inability to sit for long periods and to concentrate because of his constant pain and requirements to rest and regularly change position.
92. Drummond J determined that the correct question to be asked in relation to section 90(42)(a) is whether the impairment of itself is sufficient to prevent the Applicant from doing work "for which that particular person is already fitted without first requiring some occupational training".
93. It was submitted that Mr Bitairek's inability to work should be assessed against the requirements of the normal workplace and not as suggested by Dr Gliksman. The AAT and Secretary, Department of Family and Community Services and Bell [1998] AAT 878 approved the principle outlined in Hamal [1993] that a person's abilities are to be judged against the workplace and not the workplace of the benign employer.
94. Therefore it was submitted that Mr Bitairek's ability to work, maintain a work effort and undertake retraining should be evaluated against his current abilities and skills and his previous experience as a labourer and driver.
FINDINGS
95. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.
96. Both parties agreed that, in the circumstances of the case, it was more appropriate to assess Mr Bitairek under Table 20. The introduction to the schedule containing the Assessment Tables provides as follows:
"In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. …. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue."
97. It was clear that the major debilitating factor is the pain which Mr Bitairek suffers. Therefore the Tribunal focussed on Mr Bitairek's impairment under Table 20, rather than review in detail the conflicting evidence in relation to his functional impairment for his back and hip.
98. The Table provides the following relevant options:
"…
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance. Hypertension that is difficult to control despite intensive therapy but without end-organ damage. Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis. Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible. Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
…"
99. The Tribunal first turned to consider the appropriate impairment rating.
Mr Bitairek's evidence was that any movement, especially if he carries heavy things or if he has to push things, causes pain. If he carries anything heavy he feels 'weak'. He can stand for no more than 10 minutes and if he has to walk for more than 15-20 minutes he feels 'paralysed'. He finds it hard to climb stairs. He is unable to sit for long periods and he is most comfortable when he can lie down.
His concentration is affected and he said he can only recall some things after a few days. His sleeping is affected and he feels depressed. He is heavily medicated for both pain and 'nerves'.
He does nothing around the home, relying on his wife. He has a limited capacity to help with the washing up. He has no problem in self-care. He has limited social interests.
He is able to drive short distances only (about 5 minutes), but can force himself to drive further if necessary. Use of public transport causes pain.
On 13 September 2000 Mr Bitairek was assessed by Dr Yu who reported that he suffered constant back pain and had limited ability to walk and sit as a result of problems in his thoraco-lumbar spine. In addition he had intermittent pain radiating into both shoulders in his cervical spine (T7).
On 6 November 2001 Dr Gliksman, Health Services Australia, examined Mr Bitairek and found (Exhibit A4):
"It is possible that there is accompanied by pain when attempting full range of movements or repetitive movements … or weight bearing for a prolonged period of time."
He assessed that there was pain when Mr Bitairek attempted lumbar extension or bilateral lumbar rotation.
In February 2002 Dr Harvey-Sutton examined Mr Bitairek and noted that he reported pain in his lower back (Exhibit R2). In her evidence she said Mr Bitairek's problem is the chronic pain which originates from his hip and it is not extraordinary that Mr Bitairek cannot describe the source of the pain.
She considered that 20 impairment points was appropriate under Table 20, having eliminated 15 points and 30 points, and maintained this view in cross-examination.
The Tribunal took the view that the evidence, particularly that of Mr Bitairek himself supported a finding that his impairment rating is properly assessed at 20 impairment points. He has severe symptoms with a decreased ability to carry out many everyday activities. Most daily activities can be completed with some difficulty. His symptoms prevent some daily tasks and simple tasks aggravate his symptoms of fatigue. His symptoms cause significant interference with his ability to perform with work-related tasks and have accounted for prolonged absences from work.
The Tribunal next turned to consider if Mr Bitairek has a continuing inability to work because of his impairment. In doing so the Tribunal needed to consider if the impairment is of itself sufficient to prevent Mr Bitairek from doing any work or from undertaking educational or vocational training or on-the-job training during the next 2 years. Alternatively, if he were able to undertake training, whether such training is unlikely (because of the impairment) to enable him to do any work within the next 2 years.
As to Mr Bitairek's ability to work, the Tribunal observed that the evidence was that in September 2000 Mr Bitairek was assessed by Dr Yu as having limited ability to walk and sit. Mr Bitairek was observed to walk with a slight limp and had difficulty with complex movements such as walking on his toes. Dr Yu was of the view that Mr Bitairek had lost stability and this caused moderate interference with walking. As such, he was of the view that Mr Bitairek could undertake light work as long as he had full ability to move around (T7).
On 1 August 2000 his treating doctor Dr Qidwai considered that Mr Bitairek had problems which were long term and that Mr Bitairek was unlikely to return to work for at least 12 months (T5). In a supplementary additional report in 2 November 2000 Dr Qidwai indicated that Mr Bitairek had disc lesions on discs 3 /4, 4/5, 5/6 and that he could not return to work for 12 to 24 months (T9).
On 6 November 2001 Dr Gliksman, examined Mr Bitairek and considered that Mr Bitairek could return to work as long as the duties do not require standing in a fixed position for more than 15 minutes without a five minute rest or movement break and do not require lifting, similarly Mr Bitairek should not be required to use stairs repetitively or walk for long distances or walk on uneven ground (Exhibit A4).
That report was reviewed by Dr Kamenyitzky on 16 November 2001 and he concluded that Mr Bitairek could do:
"light bench based assembly work or be a console operator." (Exhibit A5)
However, this assessment contradicts the work place requirements as set out by Dr Gliksman.
Mr Bitairek has not looked for work since the accident because he cannot drive long distances, the pain, and his inability to manage stairs. He needs to be able to get up and down. While he said he would work at a petrol station he could do so only if he could stand up and sit down all the time.
Dr Harvey-Sutton said that because of Mr Bitairek's age, lack of English skills, no computer skills and his past job experience he was restricted in the kind of work he could do. Mr Bitairek has not worked for years and he has difficulty sitting, standing and with his attention, this being due to his pain and lack of endurance. His condition was not regarded as reversible.
She detailed problems with various types of work and thought he might be able to work at something for an hour per day, with breaks, to a total of 5 hours per week. She considered Mr Bitairek incapable of undergoing retraining that would materialise in to gainful employment.
The doctor said she was confident, in 20 February 2002 that Mr Bitairek had been in a similar condition on 1 August 2000, that is at the time of his claim. She said there was no reason for a material change from that time until the time she saw him.
Mr Bitairek has a physiotherapist who sees him twice a week at his home. Once or twice a week he attends hydrotherapy. Mr Bitairek takes strong medication for pain relief. His therapy would significantly detract from his available work time and performance.
Notwithstanding several English courses, Mr Bitairek is virtually illiterate in English and, to a lesser extent, in his native Arabic.
Although he said he would like to participate in further training although previous courses were unhelpful. Only recently he attempted a training course at Centrelink's request but he was told to stop going when he required extensive rest breaks.
The Tribunal finds that Mr Bitairek has a continuing inability to work because of his chronic pain and that his pain is, of itself, sufficient to prevent him from working. Attempts to undertake training have been unsuccessful because of his condition. Even if he were able to undertake training the Tribunal considered it unlikely because of his limitations due to pain to enable him to do any work within the next 2 years.
The Respondent therefore meets the criteria of Section 94(2) of the Act.
DECISION
The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal.
I certify that the 125 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: .....................................................................................
AssociateDate of Hearing 9 July 2002
Date of Decision 2002
Counsel for the Applicant Mr G Lozynsky, DF&CS
Counsel for the Respondent Mr C Colbourne
Solicitor for the Respondent Ms E Biok, Legal Aid Commission
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