Cutajar and Department of Family and Community Services - [2000] AATA 588

DECISION AND REASONS FOR DECISION [2000] AATA 588

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoN1999/911 and NoN1999/912

GENERAL ADMINISTRATIVE DIVISION )
          Re      JOSEPH CUTAJAR
    First Applicant

Re             CARMEN CUTAJAR
  Second Applicant  Second Applicant
          And     SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal DR J D CAMPBELL

Date17 July 2000
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefor finds that: 1. The first Applicant satisfied the criteria for a disability support pension on the date it was cancelled (1 July 1997) and that the first Applicant is entitled to payment of disability support pension from the date; and 2. The second Applicant is entitled to the payment of a wife's pension from July 1997.

(Sgd) Dr J D Campbell ………………………………..
Member
CATCHWORDS

Social Security – Disability Support Pension –cancellation – assessment of impairments – continuing inability to work – loss of associated wife's pension
Social Security Act 1991, sections 94, 100, 147, Schedule 1B

REASONS FOR DECISION

DR J D CAMPBELL

Mr Joseph Cutajar (the first Applicant) and Mrs Carmen Cutajar (the second Applicant) seek a review of the decision of the Social Security Appeals Tribunal dated 6 May 1999 which affirmed the decision of an authorised review officer ('ARO') on 21 August 1998. This latter decision affirmed an earlier decision, dated 1 July 1997, of a Centrelink delegate of the Secretary of the Department of Family and Community Services ('the Respondent') that Mr Cutajar's disability support pension and Mrs Cutajar's wife pension should be cancelled.
A hearing was held before the Tribunal at Coffs Harbour on 6 and 7 March 2000, at which the Applicant's were represented by Ms Adams, a solicitor and the Respondent was represented by Ms Collis, an advocate from the Administrative Law Section of Centrelink. Both Applicants presented oral evidence to the Tribunal.
The following material was placed in evidence before the tribunal.
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T24 pp1 – 79
Medical Report of Dr Blackman dated 2 March 2000    Exhibit A1
Medical Report of Dr Blackman dated 6 August 1999 Exhibit A2
Medical Report of Dr Blackman dated 31 August 1999 Exhibit A3
Medical Report of Dr Davis dated 23 August 1999       Exhibit A4
Medical Report Dr Davis dated 21 October 1999         Exhibit A5
Applicants' Statement of Facts and Contentions dated 2 March 2000          Exhibit A6
Respondent's Amended Statement of Facts and Contentions dated 3 March 2000          Exhibit R1
Medical Report of Dr Greacen dated 2 November 1999          Exhibit R2

issues

The relevant issues in this matter are
(1) Whether the applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991; and
(2) if so, whether or not the applicant has a continuing inability to work because of the impairment because –

the impairment of itself prevents the applicant from doing any work for at least 30 hours per week at award wages within the next 2 years; and either
the impairment of itself is sufficient to prevent the applicant from undertaking educational or vocational training or on the job training during the next 2 years; or
such training is unlikely (because of the impairment) to enable the applicant to do any work for at least 30 hours per week at award wages within the next 2 years.

legislation

The relevant legislation in this matter is the Social Security Act 1991 ('the Act') and in particular subsection 94(1) - (5), 100(3), 147 and the Schedule 1B "Tables for the assessment of work-related impairment for disability support pension (Schedule 1B Impairment Tables).
background
In 1981 the first Applicant was granted an individual pension, which later was continued as a disability support pension. On 21 March 1997, as part of a review process, a treating doctor's report on the first Applicant was lodged with the Respondent. Following a further medical review by an Australian Government Health Services Medical Officer on 3 April 1997, a decision was taken on 1 July 1997 that the Applicant no longer qualified for disability support pension (T5, p34). Following the provision of further medical evidence by the first Applicant, a further review was undertaken and again the first Applicant was advised that he no longer qualified for disability support pension. On 21 August 1998, following a review by an ARO, the first Applicant was advised that he did not qualify for disability support pension as an assessment of his impairments was rated at less than 20 per cent. The second Applicant was also advised that as a wife's pension is only payable while her husband qualifies for disability support pension, her wife's pension remained cancelled pursuant to section 147 of the Act (T21). On 6 May 1999 the Social Security Appeals Tribunal in affirming the earlier decisions, varied the reasons as to why Mr Cutajar did not qualify for disability support pension, finding that the first Applicant's combined impairment assessment rating did exceed 20 per cent, but that he did not have a continuing inability to work (T2).
evidence
mr cutajar
The first Applicant told the Tribunal that he was born in Malta on 12 September 1944 and described a typical day circa March 2000, which he later confirmed was similar to how he spent his day in 1997. The first Applicant stated that he awakes about 6.30am – 7am, has coffee, toast and tablets; watches television to 9am; drives his wife to shopping, where he sits on a bench and renders no assistance to his wife's shopping activities. After two and half hours they return home for lunch, after which he lies down for one and a half hours prior to watching television. The first Applicant stated that he does not help with the housework, but does wash the dishes and mow the front and back lawns in two one and a half-hour episodes. He stated that he does not do any house or general maintenance work, although four years ago, with the help of a daughter's boyfriend he did some house painting. The first Applicant described his hobbies as fishing, but finds walking along the rocks painful and has only once walked along the beach.
In describing a car trip to Melbourne in October/November 1998, the first Applicant stated that he drove down in three days, driving each day from 6.30am to 5.00pm, with two overnight stops. He stated that he drove for one and half hours, then rested for half an hour, that the longer route meant he encountered less traffic; that his wife did not drive and that he was tired when he arrived in Melbourne. The first Applicant stated that he finds car travel the most comfortable form of transport and that train travel does not help him. The first Applicant described his driving abilities in 1997 to be of similar order.
In response to questions asked in cross examination, the first Applicant stated that he was able to walk 1 – 5 kilometres at a slow pace without resting; that he could stand for 20 minutes, and then rest for 10-15 minutes and that he had been taking a Dolobid capsule a day for five to six years and that this gave him good relief, leaving him with not too much discomfort. Further the first Applicant stated that he had no physiotherapy and that chiropractic treatment did not help. Mr Cutajar stated that he had not worked since 1979/80 and that he did not think he was able to do full time light work.
In further responses, the first Applicant stated that he had difficulty with his left shoulder when he attempts elevation. In March 1997, Dr Blackman told him about his upper back and said the conditions which led to his restriction were:
· Pain in upper back and shoulders, with the pain located posteriorly at the level of the base of the cervical spine, with his fingers becoming numb when he tosses and turns at night.
· Lower back pain with radiation to left leg below the knee.
Finally the first Applicant told the Tribunal that he drives on average 12,000 kilometres a year in his 1988 Ford Falcon; that he went fishing on one occasion only in 1999 and that he is right-handed.
mrs cutajar
The second Applicant told the Tribunal, that she, like her husband gets up between 6.30am and 7.00am, after which she goes for a walk on her own. She makes breakfast, cleans the house and is driven by her husband to do the shopping around 9.00am. She stated that she does all the housework and the garden, with her husband doing the lawns in two episodes. She has noticed that her husband walks in a funny manner and always appears to be in pain.
The second Applicant described the 1998 car trip to Melbourne, how they stopped four or five times a day plus overnight in two motels and how tired her husband was when they arrived in Melbourne, as well as being stiff and sore.
The second Applicant stated that her husband's ability to do things was similar in 1997 to what he can do now, but before he used to help in the house and with the shopping. In 1997 her husband used to like swimming and outings, visiting his son and daughter in Melbourne and on the Sunshine Coast. At the time of the hearing the second Applicant described her husband as not being able to do very much; that she needs someone to help her and she wants to sell their house. The second Applicant also observed that while the medication helps her husband, she can always tell when he is on tablets.
medical evidence
In the medical review of his disability support pension dated 18 March 1997, the first Applicant stated that he had had a lower back problem since 1979 and that it affected his ability to lift heavy objects, as well as undertaking gardening or housework.
In an accompanying treating doctors report dated 18 March 1997, Dr Blackman described the first Applicant's condition as lumbar spondylosis commencing in 1979, which prevented the first Applicant undertaking physical work because of an inability to lift. Dr Blackman described the condition as a recurrent problem since 1979, until the present time, with the low back pain being continuous with an associated limitation of movement of the thoracolumbar spine. Dr Blackman also commented that x-rays showed decreased L4/5 and L5/S1 disc spaces. Dr Blackman noted that treatment had included traction, physiotherapy, analgesics, non-steroidal anti inflammatories and muscle relaxants. It was Dr Blackman's opinion that the first Applicant was unfit for any full time work at that time or for two years hence, but that he was fit for part time light work (T3 p21).
Dr Arad, a medical practitioner employed by the Australian Government Health Services detailed the following opinion as a result of an examination of the first Applicant on 2 June 1997.
This client has last worked as a labourer for fifteen years. He stopped in 1979 because of his medical problems. He left school at age 13 and immigrated to Australia in 1964. There is no significant employment overseas.
Mr Cutajar has been suffering from back pain radiating down his left lower limb for eighteen years, since an accident. The pain restricts his bending and lifting and his x-rays demonstrate narrowing of L4/5 and L5/S1. He has lost about a quarter of the range of movement of his back. Straight leg raising was up to 50 degrees on the right and up to 30 degrees on the left. He was reviewed by specialists after the accident. Currently he is treated with Dolobid, and surgery is not contemplated.
Mr Cutajar joins his wife shopping. His wife looks after the cooking, cleaning and laundry duties.
Following today's assessment, I find that because of his pain and the restricted movement of the back, Mr Cutajar has a permanent impairment rate of 15%. I find that he is unfit for his duties as a labourer because of the bending and lifting involved. Furthermore, because of his pain and the proven x-ray abnormality, he is unsuitable for any type of manual work. However, I find that he is suitable for full time light duties – for instance as a car park attendant, lift operator or ticket collector – as long as he is not required to bend, lift more than 5kg or stay in the same position for more than 15 minutes.
Mr Cutajar will benefit from training as long as it is suitable for his disability. (T4, p31)
In a report from his treating chiropractor dated 11 July 1997, Mr Condor noted that he had been treating the first Applicant since 1989, with his main complaint being pain in his dorsal and cervical spine, and the presence of an old injury in his lumbar spine (T7, p38).
In a report dated 17 July, Dr Newman, a consultant radiologist, stated the following opinions in relation to plain x-rays of both shoulders and cervical spine:
Both Shoulders:
Clinical notes: Progressive pain and decreased movement over 5 years.
Degenerative changes are present on both acromioclavicular joints. The changes are more marked on the right side although the left joint appears narrower than the right. No supraspinatus calcification was seen.
Osteophytosis indents and narrows the subacromial space on the right side and to a lesser extent on the left side. No gleno-humeral joint abnormality was seen on either side. There is minimal degenerative change on the biceps groove.
Cervial spine:
There is minor cervical torticollis concave left, early degenerative change on neurocentral articulations and degenerative narrowing of the 5-6 and 6-7 discs. At these latter two levels there are prominent anterior osteophytes, the vertebrae acting as block vertebrae and thereby restricting the normal range of movement significantly.
Oblique projections show neurocentral osteophytosis narrowing the right 3-4 and 5-6 foramina and the left 3-4, 4-5 and 5-6 foramina. No focal bone density change was seen. (T9, p40)
In a file note as a result of the file review, Dr Taylor notes that in her opinion Dr Arad has assessed the same impairment twice in his opinion of 2 June 1997 or, alternatively, he meant to make a notation of other joint pains eg in neck and shoulders instead of back pain Dr Taylor stated. If so, the 15 percent assessment should remain, but considered that the first Applicant would require rehabilitation in order to return to the work force (T11, p42).
Dr Hefner, a consultant orthopaedic surgeon, stated in his report of 18 February 1998 that the first Applicant could only go 1/3 of the way in back movement and had no extension in the spine. As a result of his examination Dr Hefner concluded:
I would have to say to you that this man has quite advanced spondyloarthritis affecting his spine, he will never be fit for general labouring work, as to where the whole story fits in terms of qualifying for Invalid Pension or otherwise, I guess it is a matter for Social Security and the Commonwealth doctor.
I would be of the opinion that this man is unemployable because of his back, and only selected work would be possible and I am sure that is not possible in Coffs Harbour (T12, p44)
Subsequent to the file review, Dr Arad made the following comments in his note of 26 March 1998
A letter from Dr Hefner form 18.2.98 stated that "this man is unemployable because of his back, and only selected work would be possible and I am sure that is not possible in Coffs Harbour". Dr Hefner finds Mr Cutajar to be unemployable because of lack of availability of suitable positions in Coffs Harbour. In this case, Mr Cutajar is still regarded as fit for selected light duties and the impairment rate does not change.
(T14, p46)
On 4 June 1998, the first Applicant was further examined by Dr Murphy, a medical adviser from Health Services Australia. In reporting on his examination Dr Murphy listed the following findings and concluded
On examination, the client revealed good overall mobility, with relatively easy transfers, normal paced gait with no limp, and loss of approximately ¼ normal ROM in his cervical and lumbar spines. There was no evidence of any significant neurological deficits affecting his upper or lower limbs.
His permanent impairment rating remains unchanged since his last CMO assessment at 15% and this client is medically capable of performing light or sedentary activities with provision for regular posture change. The most significant factors preventing him from finding such work are his lack of suitable background experience, long absence from the workforce, his age, plus a probable lack of suitable jobs in the local area. If vocational rehabilitation is to be pursued this should be done in consultation with the Commonwealth Rehabilitation Service. (T18, p62)
In a report undated, but complied after 16 April 1999, Dr Chan, a consultant orthopaedic surgeon, notes the radiological report of Dr Jones where in commenting on a plain x-ray of the lumbarsacral spine Dr Jones states 'significant degenerative change from L4-S1 (T24, p78). Dr Chan concluded that the first Applicant 'suffers from spondyloarthritis affecting his lower back in particular and his cervical spine. He also suffers from left leg pain, which may be referred from his back or he may have some sciatica from lumbar disc protrusion or spinal stenosis' (T24, p78).
Dr Chan also concluded that the first Applicant had a combined impairment rating of 25 per cent, with individual ratings of five per cent for the cervical spine (loss of one quarter range of normal movement), 15 per cent for thoracicolumbar spine (loss of one third range of normal movement) and five per cent for frequent pain in any joint or combination of joints. Dr Chan, nevertheless concluded in relation to the first Applicant's ability to work that:
I do not feel that his impairment is sufficient to prevent him from undertaking all other work for at least the next 2 years if he is able to find very light work which does not require him to stand in one position, or sit in one position, or manipulate any objects heavier than 2 kgs. (T24, p79)
In three medical reports, dated 6 August 1999, 31 August 1999 and 2 March 2000, Dr Blackman remained firmly of the view that the first Applicant was unable to work thirty hours per week in any job as he commented in his earlier report of 19 March 1997 and that this remains the situation. Dr Blackman considered that the conditions which existed and continue to exist that preventing the first Applicant from undertaking any work for thirty hours per week, or vocational or educational or on-the-job training are:

Cervical spine spondylosis loss of half the range of normal movement
Thoracqulumbar spondylosis loss of half the range of normal movement
Osteoarthritis of both loss of quarter range of movement of both acromioclavicular joints shoulders
(Exhibits A1, A2, A3)

Dr Davies, a consultant physician in occupational medicine, in his report dated 23 August 1999, made the following comments;
Mr Cutajar presents with a plethora of musculoskeletal symptoms and pathology consistent with either constitutional changes and/or contribution by way of employment in a heavy industry for an extended number of years.
He is clearly suffering with quite marked sponydlitic (sic) changes in his upper and lower spine where there is reduced range of movement to less than half of normal range as well as somatic referred symptoms into both his left lower limb and both of his upper limbs.
Furthermore, he suffers with degenerative changes affecting both AC joints and impingement of both shoulders resulting in loss of functional ability.
Thee (sic) is no possibility of Mr Cutajar's condition improving in the future and expectation is for increasing disability and reduced function with time and increasing degenerative changes.
He will never be able to return to his pre-injury duties as a labourer nor will he be ever suitable to undertake work of up to thirty hours per week in alternative employment. This is based on the fact that he suffers with continuous pain which will obviously affect his powers of concentration and his inability to maintain any fixed postures. He is unfit to undertake any heavy lifting, repetitive or sustained flexion, working in confined or awkward spaces, work above mid chest level, repetitively grasp or reach or climb. (Exhibit A4)

In a further medical assessment undertaken on 2 November 1999 by Dr Greacen, a medical adviser to Health Services Australia, Dr Greacen found that the first Applicant had three medical conditions, namely:

Cervical spondylosis
Lumbar spondylosis
Osteoarthritis of right and left acromioclavicular joints

As a result of his examination, Dr Greacen concluded that

This DSPensioner has gradually worsening back and neck pain, right and left shoulder pain and leg pain over many years, due to cervical and lumbar spondyloarthrosis and acromioclavicular joint arthritis. Treatment is conservative.
He has about ½ loss of range of neck movement, ¼ loss of range of back movement, and moderate limitation of right (dominant) shoulder movement due to pain.
He is permanently unfit for heavy lifting or carrying, repetitive bending, working in awkward positions or sustained postures, or working above shoulder level. His reduced sitting and standing tolerances render him unfit for full time light work.
He is considered permanently unfit for all full time work. (Exhibit R4)

submissions

It was submitted on behalf of the first Applicant that he is undertaking the minimum of activities, doing in essence only what has to be done and when doing so, it is done at a measured pace such as lawn mowing and driving. Further it is submitted that the first Applicant's impairments have been long standing and on proper assessment represented a combined impairment rating much greater than 20 per cent. Similarly, it was contended that when the list of restrictions for work arising from his impairments are listed, the opinion that the first Applicant has a continuing inability to work stated by Dr Blackman, the treating general practitioner, is the one that should be preferred.
The Respondent argued that the medical condition of the first Applicant in March 2000 is much different than it was at the time a decision was made to cancel his disability support pension. While conceding that the combined impairment rate of the first Applicant's medical disabilities was 20 per cent at the time of cancellation, the Respondent argues that the first Applicant does not have a continuing inability to work and relies upon the opinions of Drs Hefner and Chan to support that position.
considerations and findings
In preliminary comment the Tribunal notes that subsection 100(3) of the Act is particular in placing a focus for any review of a decision relating to disability support pension on a period of three months commencing at the time the decision was made to cancel the disability support pension. Material prior to and after this time ("the operative period") can be used by the Tribunal where it allows the Tribunal a better understanding and appreciation of what the impairments are and what limitations they place upon an individual's ability to work during the operative period.
Subsections 94 (1) – (5) of the Act are concerned with the qualification for disability support pension and are set out, impart, below:
Qualification for disability support pension
94. (1)a person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20% or more under the Impairment Tables;
     and
(c)the person has a continuing inability to work; and
…
Meaning of continuing inability
94. (2) a person has a continuing inability to work if the Secretary is satisfied
that:
(a) the person's impairment is of itself sufficient to prevent the person from
doing:
(i) the person's usual work; and
(ii) work for which the person is currently skilled;
for at least 2 years; and
(b)either:
(i) the person's impairment is of itself sufficient to prevent the person
from undertaking educational or vocational training during the next
2 years; or
(ii) the person's impairment does not prevent the person from
    undertaking educational or vocational training but such training is
    not likely to equip the person, within the next 2 years, to do work for
    which the person is currently unskilled.
94(3)in deciding whether or not a person has a continuing inability to work under subsection (2) the Secretary is not to have regard to
(a) the availability to the person of work in the person's locally accessible
labour market (unless subsection (4) applies to the person); or
(b) the availability to the person of educational or vocational training.
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 equip 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;
"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.

The Tribunal, has given consideration to both Applicants' evidence, and in particular to the medical evidence provided in the reports of Drs Blackman, Arad and Newman and all reports made in the decision making process which led to the cancellation of the first Applicant's disability support pension or within the operative period. The Tribunal also gave consideration to further reports from Dr Blackman, medical reports form Drs Hefner, Chan, Murphy, Jones, Davis and Greacen, in the knowledge that such reports were about the first Applicant's conditions some many months to years after the July 1997 decision to cancel his pension. The Tribunal also notes that the Respondent has conceded that the first Applicant had a combined impairment assessment of 20 per cent at the operative time and that Dr Greacen on 2 November 1999 considers the first Applicant permanently unfit for all full time work.
Having detailed the relevant contents of the various medical reports and other evidence earlier in this decision, and also how in the context of the time the evidence is to be considered, the Tribunal makes the following finding of facts as to what impairments the first Applicant suffered at the operative time in 1997, the clinical features of each impairment and the effect each impairment had on the first Applicant's ability to work:

(a)Cervical Spondylosis Pain in back of neck (the first Applicant), with numbness in fingers at night (the first Applicant, Mr Condor, chiropractor); one quarter loss of normal cervical spine movement range (Dr Hefner); radiological evidence of cervical spine degenerative disease (Dr Newman) – difficulty with rapid and repetitive movements of the neck.
(b)Thoraco-lumbar spondylosis Pain in lower back, dull but increases with activity and intermittent radiation to left leg; required medication most days (the first Applicant); radiological evidence of significant degenerative change in lumbarsacral spine (Dr Jones); loss of one quarter normal range of movement of the thoracolumbar spine (Dr Arad); unfit for repetitive bending, heavy lifting or carrying, working in awkward positions or sustained postures (Dr Arad, Dr Davis, Dr Greacen).
(c)Osteoarthritis of both Pain in both shoulder joints, left more so than right, acromio-clavicular joints with difficulty in elevating arms above shoulder
height (the first Applicant); limitation of movement of shoulder joints, right more than left (Dr Blackman, Dr Greacen); radiological evidence more marked
on right side (Dr Newman); difficulty in working
above mid chest to shoulder level.

In making the above findings the Tribunal, in commenting on significant absences of clinical detail in both the reports of Drs Blackman (initial treating Doctor's Report) and Dr Arad (Medical Review Assessment), coupled with the obvious presence of impairments at the operative time as indicated by the first Applicant's evidence, the radiological evidence and later confirmation by all doctors in terms of impairment chronicity, was left with the position of drawing clinical inferences from later medical reports to confirm what existed at the operative time. While this is not the most satisfactory mechanism (detailed medical evidence at the operative time being the most satisfactory), the Tribunal remains more than satisfied that as a consequence of the longitudinal nature of the first Applicant's degenerative disease process in his spine and shoulder joints, and the absence of any new and significant trauma, the inferences drawn are inappropriate.
In undertaking an assessment of the various impairments, the Tribunal, having considered the findings of fact for each impairment makes the following findings under the nominated Schedule 1B Impairment Table:

(a)Cervical thoraco-lumbar  Five per cent under table 5.1 – loss spondylosis   of one quarter of normal range of movement
(b)Thoraco-lumbar spondylosis             Ten per cent under table 5.2 – loss of about one quarter normal range of movement
(c) Osteoarthritis of both acromio              Five per cent for each upper limb plus clavicular joints   a further five per cent for the dominant right
upper arm under table 3 because of
shoulder pain and limitation of movement

The Tribunal also makes a five per cent rating under table 6 for chronic pain in a
combination of joints which responds to medication.

Following the use of the combined values tables the Tribunal finds that the first Applicant has a 30 per cent impairment rating. The Tribunal finds that the first Applicant satisfies both subsection 94(1) and (2) of the Act.
In turning to the issue of whether the first Applicant had a continuing inability to work, the Tribunal notes the opinions of the following doctors:
·     Dr Blackman:     unfit for full time work in March 1997 and for greater than
two years
·     Dr Arad:              unfit for any kind of manual work; suitable for full time
light duties, provided he does not have to bend, lift more
  than five kilograms on stay in the one position for more
  Than 15 minutes (June 1997).
·     Dr Hefner:          capable of performing light or sedentary activities with a
provision for regular posture change (June 1998).
·     Dr Chan:             impairment not sufficient to prevent him form undertaking
all other work for at least the next two years – not to stand
  or sit in the one position for any significant period; not to
  manipulate objects greater than two kilograms (after April
  1999).
·     Dr Davis: unable to return to full duties as a labourer nor will he be
suitable to undertake work of up to 30 hours per week in
  alternative employment (August 1999).

Dr Greacen: permanently unfit for all full time work (November 1999).

The Tribunal in considering the issue, notes that the Respondent put great emphasis on the first Applicant's ability to drive to Melbourne in 1998 and his continuing activity of mowing the lawns. The Tribunal does not draw any particular inference from these activities, other than the Applicant is able to do such activities in his own time frame, with or without medication and at a time convenient to himself. The Tribunal notes that the first Applicant does not deny undertaking the activities, but his evidence and that of his wife is that such activities did and do cause him distress. The Tribunal accepts this evidence, as well as the evidence that the first Applicant has curtailed his fishing activities.
In considering the medical opinion of Dr Arad, the Tribunal admits to being unsure as to what impairments Dr Arad actually found and further as to what impairments he actually assessed. The Tribunal concludes that Dr Arad did not address the impairment of osteoarthritis in both acromio-clavicular joints and certainly made no assessment. The reasons for such non-addressing may rest with the manner in which he perceived the impairments. In overall consideration the Tribunal finds the evidence of Dr Arad wanting mainly for a lack of clinical definition and accuracy. The Tribunal places less weight on Dr Arad's opinion as to whether the first Applicant has a continuing inability to work for this reason.
The Tribunal notes the original report of the treating doctor, Dr Blackman, and like Dr Arad's report, finds that it is deficient for a lack of precise clinical detail. Later reports by Dr Blackman tend to fill in much of the deficiency existing in the primary report, which in turn provides some comfort for his opinion as to whether the Applicant had a continuing inability to work.
In the Tribunal's view the other report, which is of significance is that of Dr Hefner. Although made in February 1998, the report is specific in what is says namely that the Applicant is unemployable because of his back and only selected work would be possible and that is not likely to be available in Coffs Harbour. The Tribunal accepts the opinion for what it says, with the Tribunal unable to draw the inference that Dr Arad drew in his opinion of 26 March 1998 that the first Applicant was unemployable because of lack of suitable positions.
In considering the remaining opinions, the Tribunal notes that there are increasing limitations on the first Applicant's ability to work and that of the opinions given in 1999, all, with the exception of Dr Chan, indicate that the first Applicant is unable to return to work in a full time capacity. The Tribunal finds Dr Chan's report inconclusive as his description of the impairments, his assessment of the cervical and thoraco-lumber spondylosis and pain and his non mention of any shoulder pathology do not provide the clinical completeness that would permit the Tribunal to be confident in his opinion.
The Tribunal, having considered the medical evidence and opinions in depth and having found that at the operative time, the first Applicant had a combined impairment rating of 30 per cent and that this impairment had caused work restrictions of no heavy lifting or carrying, no repetitive bending, not to stand or sit or stay in the one positions for fifteen minutes and difficulty is working above mid chest to shoulder level, finds that the first Applicant does have a continuing inability to work. In so finding the Tribunal concludes that the first Applicant's impairments would have prevented him from undertaking any form of work of 30 hours per week for more than two years and similarly would have prevented him from undertaking any vocational or educational or on-the-job training during the next two years. Further, even if he had been able to undertake such training it was likely that his impairment would have prevented him from doing any work within the next two years.
In making such a finding the Tribunal has given weight to the opinions of the treating doctor, Dr Blackman and to the relevant portion of Dr Hefner's opinion, where he states that the Applicant is unemployable because of his back. These opinions encapsulate; in the Tribunal's view the nature of the underlying pathology existing in the first Applicant, and the degenerative process that have and will continue to exert their influence over what the first Applicant can and cannot do. After much consideration, the Tribunal is satisfied that the Applicant's impairment at the time were of such a nature and effect as to cause severe restriction to his ability to move freely in everyday activities, let alone work. Finally the Tribunal does note that such a view point has been held by Dr Blackman throughout and reinforced by the later opinions of Drs Davies and Grecean, who unfortunately were not required to give an opinion as to the Applicant's work ability in mid 1997.
As a consequence of its findings the Tribunal is satisfied that the first Applicant meets all the criteria nominated in subsections 94(1)(a) - (c) of the Act and concludes that the first Applicant did satisfy such criteria on the day on which his disability support pension was cancelled and thereafter.
determination
The Tribunal determines that the decision under review be set aside and in substitution therefor finds that:
1. The first Applicant satisfied the criteria for a disability support pension on the date it was cancelled (1 July 1997) and that the first Applicant is entitled to payment of disability support pension from that date; and
2. The second Applicant is entitled to the payment of a wife's pension from 1 July 1997.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed:         .....................................................................................
  Associate
Date/s of Hearing  6, 7 March 2000
Date of Decision  17 July 2000
Representative for the Applicant                  Ms Adams
          Representative for the Respondent Ms Collis