Bulut and Secretary, Department of Family and Community Services

[2000] AATA 1009

DECISION AND REASONS FOR DECISION [2000] AATA 1009

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/261

GENERAL ANMINISTRAIVE DIVISION          )          
           Re      Ihsan Bulut
  Applicant
           And    Secretary, Department of Family and Community Services        
  Respondent

DECISION

Tribunal       Ms SM Bullock, Senior member  

Date20 November 2000 

PlaceSydney

Decision      The decision under review is set aside and pursuant to subsection 43 1(c) of the Administrative Appeals Tribunal Act 1975 the Tribunal substitutes its decision that Mr Bulut is qualified for a Disability Support Pension pursuant to section 94 of the Social Security Act 1991.             
  ................... [sgd]......................
  Ms SM Bullock
  Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - Impairment Rating - continuing inability to work
Social Security Act 1991 ss 94(1), (2), (4), (5)
Re Pusnjak and Secretary, Department of Social Security, AAT 12944, 26 May 1998
Secretary, Department of Social Security v Pusnjak [1499] FCA 994

REASONS FOR DECISION

Ms SM Bullock, Senior Member              

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") from a decision made by the Social Security Appeals Tribunal ("the SSAT"), which effectively held that the Applicant, Mr Ihsan Bulut, was not entitled to receive a Disability Support Pension. 

2. The application for review lodged on 21 February 2000, was heard before the Tribunal on 27 October 2000. The Applicant, Mr Bulut was self-represented; he was assisted by an interpreter in the Turkish language throughout the hearing. Mr Lozynsky, Departmental Advocate, appeared for the Secretary, Department of Family and Community Services ("the Department"), the Respondent in this matter.

3. The relevant procedural history may be summarised as follows: On 18 June 1999, a delegate of the Department reached a decision rejecting Mr Bulut's claim for a Disability Support Pension (T12). The decision to reject this application was reviewed by the original decision-maker on 6 July 1999,however, it was determined that the original decision was correct.

4. Consequently, Mr Bulut sought that the decision be reviewed. An Authorised Review Officer ("ARO") reconsidered Mr Bulut's claim, however, there was no change to the original decision (T22).

5. The ARO's decision, dated 14 October 1999, was based on the following findings: that Mr Bulut suffers from lower back pain, neck pain, Alcoholism, a Calcaneal Spur, Hypercholesterolaemia and an injury to the right eye. However, it was considered that his medical conditions did not total 20 points under the Impairment Tables contained within Schedule 1B to the Social Security Act 1991 ("the Impairment Tables"), which is the minimum number of points required pursuant to section 94 of the Social Security Act 1991(Cth) ("the Act"). Further, the ARO concluded that Mr Bulut did not have a continuing inability to work (T22).

6. On 7 February 2000, the SSAT affirmed the decision of the ARO (T2). The SSAT held that Mr Bulut's total impairment rating is 10 points under the Impairment Tables and that he therefore did not satisfy Section 94(1)(b) of the Act. The SSAT did not address the issue of whether Mr Bulut has a continuing ability to work as set out in section 94(1)(c) of the Act.

7. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth)  and the following exhibits:
   Exhibit Number     Description Date  
   A1      Report of Dr Oner    8 June 2000 
   A2      Report of Dr M Sorani        15 March 2000        
   A3      Medical Certificates from Dr Oner            
   R1      Respondent's Statement of Facts and Contentions     19 October 2000     

Issues

1. The issues to be determined in this matter relate to Mr Bulut's qualification for a Disability Support Pension. It is conceded by the Department and accepted by the Tribunal that Mr Bulut satisfies section 94(1)(a) of the Act in that he has a number of physical impairments.

2. Mr Bulut suffers from lower back pain, neck pain, shoulder pain, Alcoholism, and complications with Varicose Veins in his legs, a Calcaneal Spur, Hypercholesterolaemia, Depression and diminished vision in his right eye.

3. Having thus established that the Applicant satisfies section 94(1)(a) of the Act, the issues for determination by the Tribunal centre upon whether:

• The Applicant has an impairment which translates into a minimum of 20 points under the Impairment Tables (as required to satisfy section 94(1)(b)) of the Act); and

• The Applicant has a continuing inability to work (as required by section 94(1)(c)(i)) of the Act).

Legislation

1. The legislation relevant to a determination in this matter is contained within the Act and specifically in section 94 of the Act, which deals with qualification for Disability Support Pension. As relevant, section 94 provides:

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

   (a)the person has a physical, intellectual or psychiatric impairment; and

   (b)the person's impairment is of 20 points or more under the Impairment Tables; and

   (c)one of the following applies:

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

   …"

2. Subsection 94(2) of the Act deals with a person's continuing inability to work and subsection 94(4) deals with claimants who are 55 years or older.  As relevant these provisions are:

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

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

   (b)either:

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

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

   …"

   "94.(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…"

1. Subsection 94(5) of the Act defines "educational or vocational training", "on-the-job training" and "work"  and provides:

   "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.

   …"

Background

1. The facts contained below are by way of background information and are not in dispute.

• Mr Bulut was born in Turkey on 1 March 1942.

• Mr Bulut immigrated to Australia on 24 November 1974. He is remarried and lives with his present wife and two young children.

• Mr Bulut has limited formal education. His education ceased upon completion of primary school in Turkey.

• He has a poor grasp of English in its written and oral forms.

• Since his arrival in Australia, Mr Bulut has spent nearly all of his working life performing labour process work in various factories. 

• In 1983, Mr Bulut suffered a back injury in the course of his employment duties. After a period off, he worked from 1989-1991 as a security attendant/watchman in a car park. 

• Mr Bulut consumes approximately two litres of wine per day.

• In 1991, Mr Bulut was driving home from work while intoxicated. He collided with a pole. Mr Bulut suffered a fractured right clavicle and a broken nose. He also suffered injuries to his stomach, chest and neck. He can no longer see properly with his right eye. Furthermore, since the accident he has also had problems with his feet.

• Mr Bulut has not worked since the accident and continues to experience pain from the injuries, which he sustained at that time.

• On 17 May 1999, Mr Bulut lodged an application for a Disability Support Pension with Centrelink (T3). In that claim he notes the following medical conditions: "back pain … left fracture shoulder (sic) … depression which cause poor memory concentration (sic) right side visual difficulties … right leg and left leg have had operation before".  Mr Bulut noted that from 1983, these disabilities started to make it difficult for him to work.

• Mr Bulut's treating Doctor at the time of his pension claim was Dr Yasar Oner. Dr Oner has been treating Mr Bulut since March 1997. For the purposes of Mr Bulut's claim, Dr Oner completed a Treating Doctor's report on 5 May 1999 (T10).

• Dr Oner diagnosed the Applicant as suffering from the following conditions: Lumbar Sacral Disc Prolapse/Disc narrowing; Left Calcaneal Spur; Cervical Spondylosis and a Fracture of Left Clavicle; Chronic Alcoholism, Anxiety and Depression; poor vision in the right eye; Hypercholesteremia. The doctor further noted that these were all long term, deteriorating conditions and that the Applicant would not be able to return to any kind of work within the next two years.     

• On 10 June 1999, Mr Bulut was assessed by Health Services Australia. Dr M Brown completed a Medical Assessment Report at the time of her assessment, which may be found at T11.

• Dr Brown reported that the Applicant's medical conditions include low back pain, neck pain and pain in his left heel when walking; however, she assessed that the Applicant has "good mobility", that he "sits comfortably" and is "able to bend over whilst sitting". Dr Brown gave Mr Bulut a rating of 10 points (pursuant to Table 5.2 of the Impairment Tables) for his back condition and zero points in relation to his neck pain. Dr Brown further reported Chronic Alcoholism, Anxiety and Depression; Dr Brown also noted that the Applicant drinks 1-2 litres of wine per day. She concluded that, overall, these conditions have only minimal interference with everyday situations (thereby she rated his impairment as zero pursuant to Table 6 of the Impairment Tables). Dr Brown also noted that the Applicant has Hypercholesterolaemia, which is controlled with medication and this resulted in her reporting a zero rating pursuant to Table 20 of the Impairment Tables. A zero rating was also reported for the injury, which Mr Bulut suffered to his right eye (Impairment Table 13). Lastly, Dr Brown noted the Calcaneal Spur, which is referred to in Dr Oner's report, however, she assigned no rating.

• Dr Brown concluded that Mr Bulut's medical conditions do not prevent him from undertaking vocational rehabilitation and training, and she found that he is currently fit for thirty hours work per week performing "light process work" or "clerical work". She stated that he should avoid any bending or lifting (T11).

Evidence of Mr Bulut

1. Mr Bulut required the use of an interpreter throughout the hearing before the Tribunal. Mr Bulut related to the Tribunal that he learned English from watching television and that he understands approximately 50 per cent of what is said to him in English. He can neither read nor write in English. He is currently 58 years of age. He ceased formal education upon his completion of primary school in Turkey and has never undertaken any retraining or re-education since that time.

2. Mr Bulut informed the Tribunal that his main health problems are:

• Back pain

• Neck, shoulder and collar bone injuries

• Poor vision in his right eye

• Complications and poor circulation in his right leg following an operation to remove Varicose Veins

• Varicose veins in his left leg

• Alcohol abuse

He also reported health problems with respect to his left wrist and that he has Diabetes. These aspects of the Applicant's health, however, are not part of his claim and the Tribunal does not include them in its assessment.

1. Mr Bulut's oral evidence to the Tribunal is that he is never free from pain.  He stated that he cannot stand or walk for longer than ten or fifteen minutes without taking a rest because of the pain in his lower back. He described the pain he experiences in his right leg as a 'burning sensation' and 'cramping', and he noted that his leg becomes dark in colour as a result of poor circulation and the complications of an operation which was performed on that leg to rid him of Varicose Veins. 

1. The Applicant further stated to the Tribunal that he cannot sit comfortably for longer than twenty to thirty minutes. He also stated that he experiences neck pain and stiffness every morning when he wakes up. He has trouble sleeping because of the pain in his right shoulder. Lastly, he related that he cannot see properly out of his right eye and that he sees the letter 'O' constantly from that eye.  It also appears from Mr Bulut's evidence that he has problems with "the veins" in his eyes and that he is developing cataracts in both eyes.

2. Mr Bulut provided a report dated 15 March 2000, from his second General Practitioner, Dr M Sorani, who reported Mr Bulut's medical conditions as Lumbo-Sacral Discopathy since 1983; Calcaneal Spur; Alcoholism; Depression and Anxiety; Cervical Spondylosis; Fractured Left Clavicle; Right-sided poor vision; Hypercholesterolaemia; and Varicose Veins.  Dr Sorani noted that Mr Bulut has been seen by an Orthopaedic Surgeon, Physiotherapist and Psychiatrist and his conditions would be aggravated by heavy lifting, repeated bending and prolonged sitting and standing.

3. In his evidence Mr Bulut related that he takes 4-8 Panadol or Panamax tablets daily, depending on the severity of his pains. Largely, however, he drinks alcohol in order to reduce his pains.  He does not like taking medication and feels that doctors only want him to take more tablets in order to ease his pains. Mr Bulut stated that he prefers to self-medicate for his various conditions and that he does this by consuming alcohol.

4. Mr Bulut stated that he generally wakes up at around 11am and that he begins to drink alcohol in the afternoon at approximately 5pm or 6pm; at times however, he starts to drink at lunch time. Mr Bulut purchases a four-litre cask of wine every two to three days; he buys wine because it is cheaper than other kinds of alcohol. Mr Bulut stated that if he had more money, he would consume whiskey but that effectively, he will "drink anything".

5. Mr Bulut drinks until approximately 1am every night, by which time he is intoxicated. He no longer shares a bed with his wife because of his alcohol abuse. Mr Bulut told the Tribunal that he and his wife argue because of his drinking and that she threatens to leave him but that he feels that he has to drink. He stated that despite the warnings and suggestions of his doctors, he prefers to drink rather than take more tablets; that it "fills up the emptiness" which he feels, and that in any case, he has tried to stop drinking but he cannot.

6. Mr Bulut described the following activities, which make up his day: he wakes up late, watches television, lies down and generally stays home. Every few days he will go out to the local shops, (which are a two to three minute walk from the apartment where he lives), and he will carry home shopping bags weighing approximately two or three kilograms.   Mr Bulut plays with his children and sometimes walks his five year old daughter to her pre-school, which is also located a short distance from his place of residence. It does not appear from his evidence that Mr Bulut has any involvement with the Turkish community in Sydney or that he socialises with friends.

7. In the course of his answers to cross-examination by Mr Lozynsky, Mr Bulut stated that his most debilitating impairments are the pains which he experiences in his right leg and his lower back. Mr Bulut further stated that he might consider surgery at a later date, when he is "totally incapacitated'. In response to further questioning, he also stated that he has never attended any program such as Alcoholics Anonymous because he does not consider himself to be a "normal" alcoholic, rather, that he only uses alcohol to stop the physical pains he experiences.

8. With respect to his ability to undertake work, Mr Bulut stated that he did not believe that he could do this because of his health.    He stated that if he were in good health, he would go to work.

9. Mr Bulut further stated that he could not do "clerical work" as recommended in Dr Brown's report because he cannot read or write in English, nor can he speak or understand English properly.  He did not understand what Dr Brown meant by "light process work" and he maintained that he would not be able to work, even part-time, on a continuous basis.

10. Mr Bulut also informed the Tribunal that a Centrelink Disability Officer has not contacted him with respect to retraining, rehabilitation or any other training programs.
    Submissions

11. Mr Bulut reiterated that he is a sick man; that he experiences much pain on a constant basis and that his injuries have left him physically impaired to the extent that he cannot work.

12. Mr Bulut submitted that in its consideration of his claim, the Tribunal should place greater weight on the medical report prepared by his treating doctor, Dr Oner. In his most recent report, dated 8 June 2000, Dr Oner opined that Mr Bulut is unfit for his pre-injury employment and because of poor language skills and standard of education, is unsuitable for rehabilitation and retraining.  Mr Bulut submitted that very little weight should be given to the report prepared by Dr Brown at Health Services Australia.

13. In respect of this latter report, Mr Bulut contended that Dr Brown did not examine him properly in that she did not carry out a proper physical examination of his legs, neck, back and shoulder.  She only asked him a number of questions and asked him to perform some activities such as bending over and walking around the room.

14. Mr Bulut further contended that the doctor's entire assessment of him took no longer than ten minutes whereas he has been seeing Dr Oner, on a regular basis, since 1997. 

15. Mr Bulut also emphasised that he did not have any money with which to obtain a specialist doctor's report and had been led to believe by the Respondent that further medical reports were unnecessary.

16. On behalf of the Respondent, Mr Lozynsky submitted that the Applicant fails to satisfy section 94 of the Act in its totality, and that the Applicant's claim for a Disability Support Pension must therefore be refused.

17. Mr Lozynsky contended that although Mr Bulut has certain medical conditions (namely, low back pain, neck pain, shoulder pain, Alcoholism, Depression, Hypercholesterolaemia and loss of vision), the impairment ratings for these conditions do not add up to a total of 20 points pursuant to the Impairment Tables. Mr Lozynsky submitted that an accurate reflection of Mr Bulut's medical conditions is ten points pursuant to the Impairment Tables. In making this submission, Mr Lozynsky effectively relied upon the report of Dr Brown from Health Services Australia and contended that the Tribunal should do likewise in its determination of the matter.

18. Relying upon the report of Dr Brown, Mr Lozynsky thereby contended that Mr Bulut had lost only approximately one quarter of the normal movement in his back. That the restriction caused by his neck injury is only minor, and that with respect to his other conditions, namely his shoulder pains, Depression and alcohol abuse, that these can all be controlled by medication and have minimal effect or interference with Mr Bulut's daily functions.

19. Mr Lozynsky also relied upon the reports of Radiologists, Dr Lamond (dated 26 November 1998 (T4)), Dr Lee (dated 20 January 1999 (T5)), Dr Habib (dated 22 March 1999 (T6)) and Dr Roberts (dated 10 June 1999) to support his submission in relation to Mr Bulut's back impairment.

1. In relation to Mr Bulut's neck and the overall Impairment Rating of 35 per cent which was assessed by Surgeon, Dr Durmush (report dated 19 April 1999 (T9)), Mr Lozynsky contended that the Respondent disagrees with this report as it differs from the report of Dr Brown of Health Services Australia. Indeed, in his written submissions, Mr Lozynsky argues that:

   "The respondent disagrees with Dr Durmush's rating of 35% under tables 5.1 and 5.2 for his lumbar sacral spinal problem (T9, p60). The reason being that Dr Durmush's assessment differs with HSA's observation as the HSA doctor had observed the applicant's range of movement as being significantly better (T11, p71). In light of the disparity, the respondent contends that the assessment provided by HSA should be preferred over Dr Durmush's assessment"   (Exhibit R1, paragraph 6).  

1. Continuing with his oral submissions, Mr Lozynsky then drew the Tribunal's attention to the latest report prepared by Dr Oner, dated 8 June 2000 (Exhibit A1). In this report Dr Oner, referring to the Applicant, made the following statement "In my opinion this gentleman's total impairments would be more than 50%". Mr Lozynsky submitted that this opinion was "totally unfounded in light of the available medical evidence " and that Mr Bulut fails to satisfy section 94(1)(b) of the Act.

2. Mr Lozynsky further submitted that Dr Oner had failed to consider the various programs for rehabilitation and retraining which are available to the Applicant through the Department. Furthermore, Mr Lozynsky also submitted that the Applicant himself had failed to inquire as to the training courses and services that are available to him.

3. Mr Lozynsky then turned to consider the question of whether Mr Bulut satisfies section 94(1)(c) of the Act. Mr Lozynsky submitted that "the applicant does not have a continuing inability to work because of his impairments".

4. While accepting that Mr Bulut is 58 years old, has a poor grasp of English and that he is not a well educated man, Mr Lozynsky nonetheless submitted that the Applicant is able to undertake vocational retraining and gain employment within the next two years.

5. In his written submissions Mr Lozynsky states:

   "While Dr Oner notes that the applicant has poor language skills…the respondent contends that this poses no barrier in preventing the applicant from working or being retrained within the next two years" (Exhibit R1, paragraph 17).

Furthermore:

"…he (Mr Bulut) should be able to find light work that is suitable to his physical incapacities. The respondent contends that the applicant has not fully explored this possibility and with some training would be capable of undertaking light duties work on a full-time basis such as clerical work and light process work" (Exhibit R1, paragraph 15).

1. Relying on the report of Dr Brown, Mr Lozynsky concluded that Mr Bulut is currently fit for light employment but that he should avoid any bending or lifting. He therefore fails to satisfy section 94(1)(c) of the Act. In such circumstances Mr Lozynsky submitted that as Mr Bulut does not satisfy section 94 of the Act, the Tribunal should affirm the decision of the SSAT.
   Findings

2. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the respective submissions of the Applicant and the Respondent and by applying the legislation and relevant case law.

3. The Tribunal considers that Mr Bulut provided frank and truthful evidence.

4. There is no dispute in this matter as to Mr Bulut having a number of physical impairments and the Tribunal finds that for the purpose of his claim for a Disability Support Pension, Mr Bulut suffers from Lumbar Sacral Disc Prolapse; Cervical Spondylosis; a Fractured Left Clavicle; Chronic Alcoholism; Anxiety and Depression; Left Calcaneal Spur and Varicose Veins (particularly in the right leg); Hypercholesterolaemia and poor vision in his right eye.

5. Having considered the medical evidence available to it and the oral evidence of Mr Bulut, the Tribunal finds that the Applicant meets the minimum requirement of twenty points pursuant to the Impairment Tables. In its consideration of the evidence, the Tribunal preferred the evidence of Mr Bulut and his treating doctors, (that is, Dr Oner, Dr Capa and Dr Sorani) to that of Dr Brown. Mr Bulut's respective doctors have treated Mr Bulut over a period of time whereas Dr Brown has assessed Mr Bulut on one occasion.

6. In applying the Impairment Tables to the disabilities claimed by the Applicant, the Tribunal makes the following determinations:

7. The Tribunal used Table 4 to rate the function of Mr Bulut's lower limbs and found that a rating of ten points is appropriate. This rating accommodates for Mr Bulut's oral evidence in which he described the difficulties and pain he experiences from his Varicose Veins and Left Calcaneal Spur on walking, squatting, sitting and with his mobility generally. 

8. The Tribunal prefers the medical evidence of Dr Oner with respect to the Applicant's Cervical Spondylosis; the Tribunal rates Mr Bulut's impairment as five points pursuant to Table 5.1 to reflect the loss of a quarter of the normal range of movement.

9. The Tribunal finds that an appropriate reflection of Mr Bulut's Lumbar Sacral disability is a rating of ten points pursuant to Table 5.2. The Tribunal notes the medical evidence of Dr Oner and Dr Sorani in this respect and Mr Bulut's evidence that he experiences pain with many activities.  Additionally, The Tribunal finds that Mr Bulut has lost one quarter of the normal range of movement.

10. While symptoms of Anxiety and Depression are reported by all doctors, the Tribunal determines that the appropriate rating is nil from Table 6, "Psychiatric Impairment".  This reflects that mild but regular symptoms are present as described in Table 6.

11. Medical opinion reports that Mr Bulut is a chronic alcoholic (T10, T11, Exhibit A4).  Turning to Table 7, "Alcohol and Drug Dependence", the Tribunal determines that the appropriate rating is 5 points.  A higher rating may have been appropriate, however, the Tribunal had no direct evidence of end organ damage.

12. The Tribunal accepts that Mr Bulut's vision in his right eye is impaired. However, the Tribunal finds it difficult to rate this condition on the current evidence and has therefore provided no assessment rating.  There should definitely be a rating for this condition but the Tribunal is unable to assess this.

13. In relation to the condition of Hypercholesterolaemia, the Tribunal considers that this condition is controlled and warrants a nil rating from Table 20.

14. The Tribunal determines that Mr Bulut's combined impairment rating is as follows:

Condition     Impairment Rating Table
Varicose Veins, Left Calcaneal Spur      10         4     
Cervical Spondylosis           5     5.1      
Lumbar Sacral Prolapse     10       5.2      
Chronic Alcoholism   5       7     
Depression and Anxiety       0       6     
Hypercholeteroleamia          0     20       
Combined Impairment        30                   

1. Thus, as Mr Bulut has at least 30 points, and noting that no rating has been assigned to his visual defect, he nevertheless satisfies subsection 94(1)(b) of the Act.

2. The Tribunal next gave consideration to subsection 94(1)(c)(i) of the Act to determine whether Mr Bulut has a continuing inability to work.

3. The Tribunal has gained some guidance on this issue from Secretary, Department of Social Security v Pusnjak [1999] FCA 994.

4. The facts of Pusnjak are similar to those which are evident in Mr Bulut's case. On 26 May 1998, the Administrative Appeals Tribunal heard Mr Pusnjak's application. The Tribunal noted that Mr Pusnjak had a poor grasp of English, was poorly educated, that he had no trade skills and that he had spent all his life as a labourer. That Tribunal set aside the original decision to cancel Mr Pusnjak's Disability Support Pension, stating:

   "It has been suggested that Mr Pusnjak might be able to do light semi-skilled work. The Tribunal takes the view that it is necessary to take the qualities of the specific person into account when assessing the impact of the impairment on that person and not refer to some hypothetical person who may be able to cope with the same impairment. The same impairment would probably have little effect on the employability of a professional person. Pr Pusnjak's impairments render him unemployable. No amount of training will help Mr Pusnjak" (Re Pusnjak and Secretary, Department of Social Security, AAT 12944, 26 May 1998). 

The Department then instigated appeal proceedings in the Federal Court.

1. In considering the construction which should be given to section 94 of the Social Security Act 1991 and particularly the words 'continuing inability to work', Drummond J in Department of Social Security v Pusnjak (supra) held that a narrow approach is not warranted; indeed, that it results in absurdity and unreasonableness.

2. In endorsing the approach of the AAT, His Honour stated that:

   "…the applicant has failed to demonstrate any error of law on the part of the Tribunal in taking into account Mr Pusnjak's actual work skills and experience capacity to be retrained for any work that he could thereafter do…"

3. The Tribunal finds that on all the evidence, Mr Bulut is, because of all his claimed impairments, prevented from doing any work within the next two years.  He therefore satisfies subsection 94(2)(a) of the Act.  Mr Bulut suffers pain, loss of range of movement of the lower back and neck; he is an alcoholic, is depressed, lacks concentration and is thereby unable to work.

4. Turning to subsection 94(2)(b)(i) of the Act, the Tribunal considers that Mr Bulut's impairments of the Lumbar-Sacral Disc Prolapse, Cervical Spondylosis, Varicose Veins, Left Calcaneal Spur, Fractured Clavicle, Chronic Alcoholism, Anxiety, Depression, Hypercholestolaemia and poor vision in the right eye are of themselves sufficient to prevent him from undertaking educational, vocational or on-the-job training.  The Tribunal comes to this finding by considering Mr Bulut's pain, poor mobility, lack of concentration, poor vision, mental health problems and Alcoholism.

5. Further, noting Secretary, Department of Social Security v Pusnjak (supra), the Tribunal considers that on a broader reading of section 94 of the Act, it should not confine itself to assessing the impact of Mr Bulut's impairments and capacity for work in the abstract, but rather also take into account Mr Bulut's actual work skills and experience and capacity, which are set out above. In this light, it is not realistic to expect that Mr Bulut can be retrained to do any clerical or light process work as submitted by the Respondent.

6. Indeed, the Tribunal considers that the Respondent's submissions are unreasonable when one considers Mr Bulut and his work skills, experience, circumstances and capacity for retraining in their totality.

7. Accordingly, the Tribunal finds that Mr Bulut satisfies subsections 94(2)(a) and (b) of the Act and hence having thus satisfied all the legislative requirements, the Tribunal determines that the Applicant is qualified to receive the Disability Support Pension.

8. Accordingly, pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and the Tribunal substitutes its decision that Mr Bulut is qualified for a Disability Support Pension arising out of his claim lodged on 17 May 1999.

   I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member

   Signed:         .............................. [sgd]..................................
     Sharonne Brainenberg, Associate

   Date of Hearing                  27 October 2000
   Date of Decision  20 November 2000
   Representative for the Applicant              Self Represented

   Representative for the Respondent        Mr George Lozynsky, Departmental Advocate