Etri, Abdulla v Director General of Social Security

[1984] FCA 234

Re: ABDULLAH ETRI
And: THE DIRECTOR-GENERAL OF SOCIAL SECURITY
No. G.168 of 1984
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - Social Security - claim for invalid pension - whether Tribunal reached conclusion as to extent of present disability by reference to matters not the subject of evidence - whether Tribunal ought to have considered an alternative case of incapacity caused by the possibility of recurrence of a previous injury.

Administrative Appeals Tribunal Act 1975 ss.43, 44

HEARING

SYDNEY

#DATE 15:8:1984

ORDER

1. Appeal dismissed.

JUDGE1

This is an appeal, pursuant to s.44 of the Administrative Appeals Tribunal Act 1975, against a decision of the Administrative Appeals Tribunal affirming a decision to refuse to the applicant an invalid pension. The right of appeal to this Court is limited to an appeal on a question of law.

2. Section 43(2) of the Administrative Appeals Tribunal Act requires the Tribunal to give reasons either orally or in writing for its decision. By s.43(2B), where the Tribunal gives in writing the reasons for its decision, those reasons are to include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

3. The Tribunal, in this case constituted by the Hon Sir William Prentice (Senior Member), gave written reasons for its decision. These reasons set out carefully and at some length the relevant evidence, including particularly the medical evidence relating to the present physical and psychiatric condition of the applicant. The Tribunal found itself "unable to conclude that Mr Etri suffers any significant physical or mental impairment of his ability to work" and therefore dismissed his application for review.

4. It was conceded on behalf of the applicant before me that there was conflicting expert evidence as to the present physical condition of the applicant and that the conclusion expressed by the Tribunal was one open to it. However, it was said that the conclusion was vitiated in law by a comment offered by the Tribunal, which was relevant to the conclusion but which was not supported by any evidence. The comment comes in a passage immediately following consideration by the Tribunal of the evidence of two psychiatrists to the effect that the appellant suffered no present psychological or psychiatric disorder. The passage reads:

"12. Reliance in support of the claim to the invalid pension is thus placed on organic disorder without psychological complications. It seem curious that if Mr Etri has the unremitting pain of which he spoke in the witness box, he should have received such comparatively modest amount of treatment as he has had - he is in receipt of only a small amount of analgesics at present".

1. Counsel for the applicant argues, I think correctly, that the second sentence in this passage is more than an aside; that it indicates a view by the Tribunal that Mr Etri had, at least, grossly exaggerated in his evidence the degree of his present pain. Counsel argues that the ultimate determination of the Tribunal that there was currently no significant physical impairment of the applicant's ability to work would very probably have been affected by this conclusion. I think that this is so. The Tribunal expressly took into account, as it was entitled to do, its own assessment of the applicant as well as the medical evidence in making its final determination. This opinion must have played a part in that assessment.

2. Counsel attacks the statement in para 12 upon the basis that it involves a conclusion as to the appropriate relationship between a given consumption of analgesics and a degree of pain; a relationship in respect of which there was no evidence before the Tribunal. There was evidence, which was not challenged, that the applicant was, at the time of the hearing, seeing a general practitioner, Dr Essammeguid, every two or three weeks, that Dr Essammeguid prescribed analgesics and that the applicant took those analgesics three times a day. It was said that it was not for the Tribunal, without the benefit of medical evidence, to decide that this quantity of analgesics was inconsistent with the evidence of the applicant that he has regular and frequent pain both by night and by day.

3. I would agree with the criticism which is offered by counsel if the Tribunal had made the conclusion which counsel attribute to it. However, I do not think that the relevant passage indicates that the Tribunal did take that course. The word "treatment" is wider than the prescription, or consumption, of analgesics. The applicant gave evidence that he has suffered from low back pain since 1973 when he sustained an injury at work. There was evidence to indicate that, at that time, he suffered a disc lesion. I think that the Tribunal was considering the totality of the medical treatment obtained by the applicant over the period of ten years between the first appearance of the back pain and the date of hearing and commenting that this was inconsistent with the "unremitting pain" deposed to by Mr Etri. The Tribunal was certainly indicating a sceptical view about Mr Etri but this was based upon material properly before it. It did not involve the exercise attributed to the Tribunal by the submissions made on behalf of the appellant. No ground has been advanced for holding that, in relation to the finding as to present disability, the Tribunal erred in law.

4. There is, however, another matter, which is not referred to in the Tribunal's reasons for decision. The appellant contends that this matter constituted a second issue, which the Tribunal failed to address. This relates to the effect upon the applicant's present working capacity not of any present disability but rather of his past injury and his vulnerability to a repetition of that injury. Counsel for the applicant argues that, irrespective of any incapacity stemming from present physical disability, his client was entitled to a pension if the past injury has disqualified him from obtaining any employment reasonably open to him. Reference was made to the test mentioned by Davies J in Re Panke (1981) 4 ALD 179 at pp 180-181:
   
   

"It follows that the term 'incapacity for work' in the Social Services Act denotes incapacity to engage in remunerative employment, that is to say, a lack of capacity for earning."

1. The applicant is a 40 year old Lebanese, illiterate in his own language and in English. He came to Australia in 1969 and worked in four separate labouring jobs before his back injury in 1973. There was evidence before the Tribunal, in the form of a letter from the Commonwealth Employment Service, to establish the extreme difficulty, having regard to the applicant's background, experience and previous occupations, in his obtaining employment other than of a labouring nature. If, according to the argument, there was material before the Tribunal to indicate that the previous injury, though present asymptomatic, resulted in a situation making it undesirable for him to undertake heavy work, then he should be regarded as being incapacitated within the meaning of the Social Services Act.

2. The only evidence to support this line of argument is contained in the oral evidence of Mr Frederick Ehrlich, an orthopaedic surgeon who examined Mr Etri at the request of the Social Services Department. In his report to the Department Mr Ehrlich had said of the applicant:
   
   

"He may have had a lumbar disc lesion following the incident of 1973. There is now no convincing neurological abnormality whatever and the presence of numerous signs of fabrication was demonstrable instead."

1. He also said:
   
   

"It is difficult to accept his protestations of inability in view of the grossly inconsistent physical signs and doubt must remain about the existence of restrictions at all."

1. Mr Ehrlich gave this evidence in chief:
   
   

"Q. What work restrictions would you place on him?

A. Well, probably none although if he has a disc lesion in the past, and if it is giving him some symptoms, then he probably would be sensible to not try anything very hard, very heavy, much lifting. He should probably avoid all of those things if indeed he does have some symptoms still.

Q. Would you put it in the category of 85 per cent?

A. No."

1. In cross-examination there was discussion as to Mr Ehrlich's view about the symptoms alleged by the applicant, leading to the following evidence, relied upon by the applicant in support of this second submission:
   
   

"Q. So really it comes down to, in the end, whether you accept the applicant when he describes his symptoms or you reject what he has to say?

A. Yes, I think that it probably does come in the end to that.

Q. If we take it from the view that you have expressed in your report, and obviously that involves some conclusions about the acceptance or otherwise of the applicant's word?

A. Yes.

Q. Given that, what restrictions would you put on him? For instance, could he go out and do builders labourers work? Would you say that he was certified fit for that sort of work?

A. No, I do not think I would certify him fit for that, because I do not think I could ever muster enough confidence to say that a man has no symptoms, even though he keeps screaming that he has got symptoms. I do not have that sort of supreme confidence ever, so I would not like to say that he is fit to be a builders labourer. What I would prefer to say is that I can find no reason why he should not be fit for it. I am prepared to say that.

Q. Do you consider him fit for heavy labouring work? What is your opinion on that? Is he fit for heavy labouring work or would you, given the evidence before you have to perhaps put some restriction on the work he might do?

A. Well, I would be inclined to put some restrictions; I would be inclined to - if really pressed, in a clinical situation I would not be pressed like that, but if really pressed, I would have to say well, perhaps he should not do heavy work because he probably has had this trouble in the past and it could give him trouble again, and he may have some symptoms and so on, but as I tried to explain to your colleague before, I have great difficulty getting past the - not bizzare, but how shall I say, the extraordinary physical findings. I think the sort of credibility problems this presents would make anyone but an extremely tolerant person just disregard his complaints, you see.

Q. Is it perhaps that your view, and because you are the expert in this area, doctor, that on the balance of probabilities when you look at the CAT scans and your findings generally, that you think there is some level of symptomatology there, but certainly nowhere near to the extent that the applicant states?

A. Yes, perhaps that is the situation.

Q. And working on that assumption, perhaps, well I think you have agreed with me that heavy labouring work is possibly out. Would you also perhaps restrict him from a position which involved repetitive bending and stooping?

A. Yes, I think I would put that in the same category as heavy lifting, yes.

Q. And what about positions in which, for instance, driving some sort of plant and equipment which vibrates quite a great deal, would that aggravate a situation where there is some symptomotology related to a disc pathology?

A. Well, if he has got disc pathology and he has got symptoms from that and I do not think he has, but if he does, then I certainly would recommend that he does not drive an earth-moving machine or that kind of thing, no.

Q. What about climbing up and down ladders; would you be able to exclude that or is that something you think that he probably would be able to do?

A. Look, on what he could show for himself, I would really see no need to put any exclusions on it. The reason why I am agreeing with exclusions is really because of his past history, not because of his present findings."

1. Counsel for the applicant argues that this evidence must be read as an expression of the view by Mr Ehrlich that, notwithstanding the absence of present symptoms, Mr Etri is unfit for heavy labouring work or work involving repetitive bending and stooping. He argues, rightly I think, that if it be correct that Mr Etri is unable to do that kind of work then a real question arises as to whether, having regard to his background and training and the current state of the employment market, he is able to engage in remunerative employment at all.

2. The answers given by Mr Ehrlich are not as clear as one might wish. It is true that Mr Ehrlich says that he would not certify Mr Etri fit for builders labourers work but he does this not on the basis of any found disability - he says he can find none - but rather on the general principle that he could never confidently say that a man asserting symptoms is symptom free. If pressed, in a clinical situation, he would have to say "perhaps he should not do heavy work because he probably has had this trouble in the past and it could give him trouble again, and he may have some symptoms and so on" but he goes on to repeat that he does not see any evidence of the existence of some symptoms. This statement was repeated again in each of the last two answers in the evidence quoted above.

3. I think that, reading the whole of the relevant evidence, Mr Ehrlich was saying no more than that, if there were symptoms of a continuing problem, then it would be undesirable for the applicant to engage in the types of job put to him by the cross-examiner. In other words, his evidence went only to the issue of present disability. I do not think that he went as far as to say that if there were no present symptoms these jobs should be eschewed. At p 6 of its Reasons the Tribunal did refer to the answer given in evidence in chief by Mr Ehrlich, which I have quoted, as being a summary of Mr Ehrlich's view. Although this evidence was expanded in cross-examination, the evidence in cross-examination did not differ materially from the evidence in chief. This material was relevant to be taken into consideration in considering the existence, and extent, of any present disability. There would seem to be a logical problem in saying that a man is presently fit for heavy work but nonetheless should not carry out that work because of a past injury and the possibility of a recurrence. But, putting aside this problem, the evidence does not go so far as to say that in the absence of present disability Mr Etri was incapacitated for work because of the possibility of a recurrence of his previous injury. There was no second issue, no alternative case, for the Tribunal to determine.

4. In my view the Tribunal did not fall into error of law in relation to either of the matters relied upon. The appeal should be dismissed.