Foster; Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 874

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1294

GENERAL ADMINISTRATIVE DIVISION          )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    DAVID FOSTER
  Respondent

DECISION

Tribunal Professor T Sourdin, Member

Date2 September 2002
PlaceSydney

Decision The Tribunal varies the decision under review to determine that Mr Foster is qualified for a disability support pension pursuant to section 94 of the Social Security Act 1991 from the date of lodgement of his application for review of the decision with the Social Security Appeals Tribunal on 15 May 2001.

[SGD] Professor T Sourdin
MemberCATCHWORDS

SOCIAL SECURITY – claim for disability support pension – impairment is 20 points or more vide Schedule 1B - ability to undertake work – ability to undertake educational or vocational training
Social Security Act 1991 – ss 94(1), (2), (3), (5), 100(3)

Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996)
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Raketic and Secretary, Department of Social Security (1985) 8 ALD 123

REASONS FOR DECISION

2 September 2002 Professor T Sourdin, Member

This is an application by the Secretary, Department of Family and Community Services for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 16 July 2001. On 28 July 2000, a delegate of the Secretary, Department of Family and Community Services ("the Applicant") decided that David Foster ("the Respondent") was not eligible for a disability support pension. That decision was affirmed by an authorised review officer of the Respondent on 7 November 2000. The SSAT set this decision aside on 16 July 2001 and remitted the matter back to the Secretary. The Secretary, Department of Family and Community Services lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 29 August 2001.
A hearing before the Tribunal took place on 24 April 2002 and 2 September 2002. Mr Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink, appeared for the Applicant. The Respondent, David Foster was unrepresented.
The Tribunal had before it the documents provided by the Applicant pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents", T1-33, pp1-157). The Tribunal also took into evidence the following:
Exhibit          DocumentDate
A1      Applicant 's Statement of Issues   5 October 2001
A2      Applicant's Statement of Facts and Contentions          17 April 2002
A3      Letter from Dr P Kamenyitzky and report of Dr M Gliksman    18 December 2001 and  21 November 2001
A4      Centrelink - Medical Review – Newstart/Youth Allowance      20 May 2002
A5      Centrelink - Medical Assessment Report 22 May 2002
R1      Letter from Lyn Truner       22 April 2002
R2      Letter from Wentworth Area Health Service      20 March 2002
R3      Letter from Hawkesbury District Health Service Ltd 18 August 2000
R4      Medical records from Wentworth Area Health Service -         various dates
R5      Medical records from Dr Mandali, Mental Health Services, Penrith,Wentworth Area Health Service         various dates

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION

The issue before the Tribunal is whether the Respondent, Mr David Foster, has a "continuing inability to work" because of his impairment pursuant to the conditions in subsections 94(2), (3), (5) and (6) of the Act. It is agreed by the Applicant department that Mr Foster has an impairment that is assessed at 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991 ("the Act").
Section 94 of the Act states, relevantly:
"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;
…
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(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(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."
Subsection 100(3) of the Act is also relevant, and states:
"If:
(a) a person lodges a claim for a disability support pension; and
(b) the person is not, on the day on which the claim was lodged, qualified for a disability support pension; and
(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."
Following Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996), the period of assessment in this matter, pursuant to subsection 100(3) of the Act, is from 9 May 2000, when the claim was first lodged, to 9 August 2000.
The Tribunal has considered the medical evidence presented to it as well as the evidence presented by the Applicant. The Tribunal takes account of those conditions as described, in the context of any medical evidence and as relevant.
RESPONDENT'S EVIDENCE AND FACTS
BACKGROUND
The facts contained below are by way of background information and are not in dispute.
Mr Foster was born in Australia on 14 December 1956.
Mr Foster left school towards the end of Year 8 to assist his mother with farming work.
Mr Foster then worked from 1971 until about 1980 in a range of jobs. He worked on the farm and in a scrap metal yard. He also worked as a bicycle mechanic, and worked as a labourer on two occasions. On one of those occasions whilst employed at Crane Enfield he suffered an eye injury when molten copper damaged his eyes.
From 1980 until 1990, Mr Foster worked as a cleaner and labourer on the railways. He had previously been involved in track maintenance and whilst working on the railways he suffered injuries to his neck and back.
In 1995 until 1999 Mr Foster worked as a sheet metal worker, a labourer and as an amusement arcade supervisor.
Mr Foster has had six children with two different partners, his youngest child is aged four and his oldest child is 22. The oldest child from his most recent relationship (of three children) was born in 1986.
Mr Foster has limited formal education. His education effectively ceased when he was aged 15. Since that time he has completed a certificate course which he described in evidence and is referred to below (in evidence) as being an employer supplemented scheme. It would appear that it involved little training or any formal or informal attendance at a course.
Mr Foster appears to have had a difficult upbringing and although he has a good capacity for spoken English, it is fair to say that his written English is poor.
Mr Foster currently has neck and back pain, arthritis in both hands, a hearing impairment, an eye condition and an anxiety and psychological condition.
Shortly before the final hearing in this matter, Mr Foster was granted a disability support pension. In this regard, the Tribunal notes that in early 2002 Mr Foster was hospitalised as a result of his worsening anxiety and depressive condition. When this matter was first listed for hearing in April 2002 details of that period of hospitalisation were sought from the Department and Mr Foster. The Department was unable to produce on request any reports relating to the Respondent's psychological condition. The Tribunal issued summonses requesting material from the Wentworth Area Health Service and Dr Mandali. After access had been granted to that documentation Mr Foster's disability support pension application was apparently successful.
Accordingly, this application essentially relates to the period prior to the recent grant of disability support pension.
On 9 May 2000 Mr David Foster lodged an application for a disability support pension with Centrelink (T8). In that claim he noted the following medical conditions: " bad eyesight, bad back, arthritis in hands knuckles are swollen making it painful to move, bad neck -- neck locks up rendering me incapable of head movement in any direction, bad hearing makes it difficult to follow verbal instructions, bad back makes it difficult …and difficult in sleeping" (sic). Mr Foster also noted at T8 that "arthritis in hands and bad back and neck, hearing and eyesight cannot be treated and recovery not expected".
Mr Foster's treating doctor at the time of his pension claim was Dr Jain. Dr Jain completed a Treating Doctor's report that is located at T9. Dr Jain referred to the neck pain and hearing loss aspects of the Respondent's condition. Dr Jain did not complete a number of parts of the Treating Doctor's report.
Earlier in that year, a Treating Doctor's report had been lodged by Dr Brdarevic (T5). Dr Brdarevic had only referred to the osteoarthritic condition in the Respondent's hands.
Dr Grauman, an optometrist, reported on the eye condition suffered by the Respondent and had referred the Respondent to a specialist for a second opinion (T6).
An audiogram prepared by Simon Whittaker (at T7) showed bilateral mild, mid to high frequency hearing loss.
A medical assessment report by Dr Kamenyitzky (T10) commented upon the arthritic condition in both hands and the neck and that the Respondent had restricted movements. There was no reference made to the Respondent's eye condition in the report. Dr Kamenyitzky then completed the medical assessment report for the department and concluded that the Respondent had generalised osteoarthritis of the hands and neck and was unable to do heavy work or to turn his head in extreme positions. He concluded that "he has a combined impairment rating of 20, but on medical grounds alone, I would have to say that he is fit of light work (sic)." He also concluded that "he is fit for vocational training and vocational rehabilitation." At the time that the Doctor wrote his report he did not have an audiogram available.
Dr Tran completed a Treating Doctor's report on the 16 June 2000 (T13). In that report, the Doctor commented on the neck pain, arthritis, anxiety and hearing impairment conditions of Mr Foster. He did not comment on the eye condition of Mr Foster and noted that the anxiety and hearing impairment was long term and stable. Dr Tran considered that the neck pain and arthritic condition in Mr Foster's hands were long term and deteriorating.
A further medical assessment report was prepared by Dr P Thomas (T14) on 30 June 2000. Dr Thomas had the advantage of reviewing the audiogram results. He also noted that "(Mr Foster) also has a letter from an optometrist (dated13.4.00) which states 'slightly reduced' acuity, and eye pain. He has been referred to an ophthalmologist. As diagnosis and investigation is not complete, this is a temporary condition. It does not prevent work." Dr Thomas also referred to Dr Tran's report and noted that an additional condition of anxiety was reported. Dr Thomas considered that Mr Foster had impairment rating of 20 points and did not depart from the previous recommendation.
Dr Tran completed an additional Treating Doctor's report on the 21 August 2000 which indicated that Mr Foster would not be able to work more than 20 hours per week within the next two years (T17).
A further report was prepared by Dr Forssmann for Health Services Australia on the 28 September 2000 (T18). Dr Forssmann indicated that "I contacted the treating doctor who states that Mr Foster has made a slight improvement in his condition over the past month due to physiotherapy, and is fit for light duties not involving any lifting or carrying, such as clerical work or telemarketing. This will require further vocational training."
EVIDENCE OF MR FOSTER
Mr Foster appeared in person at the Tribunal. He attended the hearing on 24 April and gave evidence by telephone on 2 September 2002. Mr Foster was assisted at the hearing on 24 April by his sister.
Mr Foster informed the Tribunal that his main health problems are:

Back pain
Hearing loss
Neck pain
Eye condition
Arthritis in hands
Anxiety, poor concentration and depression

Mr Foster's oral evidence to the Tribunal is that he often has pain. On some occasions he has difficulty getting out of bed particularly when his neck condition is severe and on other occasions he can have a day without suffering from "too much" pain. He has difficulty with the arthritic condition in his hands particularly in the cold weather and he finds that bathing his hands in the morning in hot water often assists. He referred to his eye condition and noted that he sometimes has great difficulty reading and would suffer from eye pain. He was however, able to watch television without difficulty. He has difficulty sitting, driving and walking over long periods of time. On some days it is difficult for him to sit, drive or walk for longer than 15 minutes.
He is unable to do any gardening, has difficulty washing-up, cannot hang up washing, and on occasion has difficulty shopping. His two older children have been able to assist in the past. He was the primary carer of his three children in some periods in late 2000.
Towards the end of 2001, Mr Foster experienced relationship difficulties with his partner. He was hospitalised for a period in early 2002 with major depression and suicidal ideations. He moved out of the house that he shared with his then partner. Since that time, he has lived at the homes of relatives and friends and also resides in his car.
In the documentation prepared by Mr Foster it was clear that his written English was poor. His sister assisted him to fill out documents and to prepare basic documents. In relation to the certificate program Mr Foster had completed, Mr Foster gave evidence that no written work and no teaching had taken place. The program involved the employer certifying that skills and instruction had been provided as part of a funded training scheme. Mr Foster indicated that he had not received training although he had requested it.
He indicated that he was keen to work but did not think anyone would employ him. He said that his previous work injuries would be a detrimental factor in any employment. He also noted that he had difficulty working consistently because of his neck and hand condition and because he could not lift or carry things.
The T-documents contain a few medical reports on the Respondent over a period of one year. It is clear, and not in dispute that Mr Foster suffers from neck pain assessed at 5 points under Table 5.1, osteoarthritis assessed at 10 points for his dominant right-hand and 5 points for his left hand under Table 3, and hearing loss assessed at zero points under Table 12.
MEDICAL EVIDENCE
The medical evidence relied upon by the Applicant and the Respondent had been noted previously. Much of the evidence was prepared "on the papers'" However, Dr Gliksman and Dr Kamenyitzky interviewed Mr Foster and took the view that he was fit for full time work or retraining. Each expressed this view with significant limitations. For example, Dr Gliksman noted "In respect of section 94(2) an account should also be taken of Mr Fosters limited literacy and numeracy skills, when considering the likelihood of successful retraining."
ANALYSIS OF EVIDENCE AND FINDINGS
There is no dispute and the Tribunal finds that Mr Foster has a number of physical impairments. In relation to subsection 94(1)(b) of the Act, it has been accepted by the SSAT that Mr Foster's impairments are of 20 points or more under the Impairment Tables. A finding in this matter having been made in respect of the 20 points impairment, it is necessary for the Tribunal to comment on the Applicant's inability to work as required under section 94(1)(c)(i) of the Act. In this regard the Tribunal has gained some guidance on this issue from Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444.
The facts of Pusnjak (supra) are not similar to those which are evident in Mr Foster's case. However, as in Pusnjak's case , it is relevant to consider the skills and literacy levels of a claimant. 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. 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.

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 Secretary,Department of Social Security v Pusnjak (supra) held that a narrow approach is not warranted; indeed, that it results in absurdity and unreasonableness.
In endorsing the approach of the Tribunal, Drummond J 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 and capacity to be retrained for any work that he could thereafter do…"
Referring to subsection 94(2) of the Act which contains various definitions in relation to a person having a continuing inability to work, one relevant consideration for the Tribunal is whether Mr Foster's impairments of themselves will prevent him from working or undertaking training within the two years from the date of referral.
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the legislation and case law. Mr Foster was cooperative in the provision of his evidence and provided it to the Tribunal to the best of his ability.

The Tribunal has also referred to Re Raketic and Secretary, Department of Social Security (1985) 8 ALD 123 in which the Tribunal considered the effects of pain in relation to claimants. In this regard, the Tribunal noted:
"There is a growing body of research material on pain…it can not be assumed that functional pain is somehow less crippling or disabling than pain that is related to a physical trauma. The neurological mechanisms which mediate perception of pain are highly complex and not fully understood. This is currently an intense area of research, and theories and treatments are undergoing profound change."

Mr Foster experiences chronic pain on a regular basis and is taking medication for this. He also has a realistic concern that his conditions will deteriorate. These conditions impact on his ability to undertake vocational or on-the-job training within the next two years. However, it is a combination of factors that impact upon Mr Foster's ability to work and his ability to undertake vocational or on-the-job training. These include Mr Foster's physical and psychological impairments, his past level of educational attainment, his pain and his personal circumstances.

The Tribunal finds that on all the evidence, Mr Foster is, because of all his impairments, prevented from doing any work within the next two years. In this regard, Mr Foster gave evidence about the range of jobs he considered he could do. The medical reports are also relevant. It seems clear that he will be unable to pursue work involving - lifting, maintaining a grip, using vibrating tools, maintaining a prolonged seating position or performing keyboarding tasks (Dr Gliksman). In the Tribunal's view, the Applicant may be able to perform some work but there would be substantial periods of incapacity. Mr Foster therefore satisfies subsection 94(2)(a) of the Act. The Tribunal finds that Mr Foster suffers pain, loss of range of movement of the lower back and neck, an arthritic condition that affects his hands and is thereby unable to work.
Turning to subsection 94(2)(b)(i) of the Act, the Tribunal considers that Mr Foster's impairments together within his background are sufficient to prevent him from undertaking educational, vocational or on-the-job training. The Tribunal comes to this finding by considering Mr Foster's pain, poor hand skills and other conditions. 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 Foster's impairments and capacity for work in the abstract, but rather also take into account Mr Foster's actual work skills and experience and capacity, which are set out above. In this light, it is not realistic to expect that Mr Foster can be retrained to do any light unskilled work as submitted by the Applicant. The impairments of Mr Foster prevent him from undertaking educational, vocational or on-the-job training within the next two years. The Tribunal therefore considers that Mr Foster satisfies subsection 94(2) of the Act and accordingly, Mr Foster then satisfies subsection 94(1)(c)(i) of the Act.
Accordingly, the Tribunal finds that Mr Foster 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 was qualified to receive the disability support pension from the date of the lodgment of his application to the Social Security Appeals Tribunal.
The Tribunal varies the decision under review to determine that Mr Foster is qualified for a disability support pension pursuant to section 94 of the Social Security Act 1991 from the date of lodgement of his application for review of the decision with the Social Security Appeals Tribunal on 15 May 2001.

I certify that the 51 preceding paragraphs are a true copy of
the reasons for the decision herein of Professor T Sourdin, Member
Signed: H Sim         .....................................................................................
  Associate
Dates of Hearing  2 September 2002
           Date of Decision  2 September 2002
Advocate for Applicant  Mr George Lozynsky, Departmental Advocate
Representative for the Respondent        Self

[2002] AATA 874

2 September 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Contract Formation

Breach of Contract

Compensatory Damages

Unjust Enrichment

Limitation Periods