Holmes and Secretary, Department of Family and Community Services

[2002] AATA 1342

DECISION AND REASONS FOR DECISION [2002] AATA 1342

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2000/1920

GENERAL DIVISION         )          

Re      Paul Holmes           

Applicant

And    Secretary, Department of Family and Community Services        

Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member  

Date23 December 2002

PlaceNewcastle

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2000/1920

GENERAL ADMINISTRATIVE  DIVISION       )          
             Re     Paul Holmes       
  Applicant
           And    Secretary, Department of Family and Community Services         
  Respondent

DECISION

Tribunal       Ms SM Bullock, Senior Member   
Date              23 December 2002

PlaceNewcastle

Decision      For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 affirms the decision under review.

..............................................
  Ms SM Bullock     
   Senior Member            
CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – Qualification - Impairment of right arm and hand – Continuing inability to work – Whether the impairment of itself prevents the Applicant from doing any work for at least 30 hours per week at award wages within the next two years and undertaking educational or vocational or on-the-job training during the next two years

LEGISLATION

Social Security Act 1991 (Cth) s94

AUTHORITIES

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

Ms S M Bullock, Senior Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding pages are a true copy of the decision and reasons for decision herein of Senior Member SM Bullock.
Signed:         
          ..................................................................................……………………………….

Associate

Date of Hearing  23 December 2002
Date of Decision  23 December 2002
Representative for Applicant     Self-Represented        

Representative for Respondent   Ms R Quinn, Departmental Advocate

ADMINISTRATIVE APPEALS TRIBUNAL  
DECISION
MS SM BULLOCK, SENIOR MEMBER
N2000/1920
HOLMES and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
MONDAY, 23 DECEMBER 2002

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Mr Paul Holmes. The Respondent is the Secretary, Department of Family and Community Services ("the Department"). In this matter, Mr Holmes has appealed to the Tribunal in relation to a decision made by the Social Security Appeals Tribunal ("the SSAT") on 9 October 2000 that Mr Holmes did not satisfy the qualifying criteria in relation to section 94 of the Social SecurityAct 1991("the Act"), particularly in relation to that part of the criteria concerning Mr Holmes' continuing inability to work and that is contained within subsection 94(1)(c) of the Act and, accordingly, the SSAT decided that Mr Holmes was not qualified for a Disability Support Pension.

The history of this matter is that the SSATs decision had affirmed a decision of an Authorised Review Officer ("ARO") of the Department.  The ARO made a decision on 16 May 2000, that is found at T29 of the T Documents.  The ARO found that Mr Holmes did have an impairment of at least 20 points so he has satisfied some of the criteria but decided that he was capable of undertaking light work including as a call centre operator undertaking inquiries and therefore did not fulfil all the criteria for a Disability Support Pension.  Whilst the ARO noted that there was some limitations of his abilities in terms of his right arm and hand this did not entirely preclude Mr Holmes from working and the ARO determined that its decision was based on all the information available to it, including the opinion of a Health Services Australia Medical Adviser, Dr C Aus, who made a report on 21 January 2000 (T24).  The ARO's decision affirmed the original decision of a Delegate of the Department dated 25 February 2000 (T25) to cancel Mr Holmes' Disability Support Pension.

A Hearing was held in Newcastle on 23 December 2002. Mr Holmes was self-represented and he provided oral evidence to the Tribunal. The Respondent was represented by Ms R Quinn who is a Departmental Advocate. There were documents lodged in this matter pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T Documents, T1-T30). There are also a number of Exhibits which were taken into evidence. There is Exhibit A1, which is a handwritten undated document provided by Mrs Caroline Holmes, Mr Holmes' wife, which details Mr Holmes' restrictions and limitations. For the Respondent, Exhibit R1 is the Respondent's Statement of Facts and Contentions dated 4 June 2002 and it had a number of attachments. There is a report attached to Exhibit R1 by Dr M L McGinty who is a Health Services Australia Medical Officer, dated 22 March 2002. A further attachment to Exhibit R1 is a report by Dr J Graham, Occupational Physician, dated 26 February 2002. Further attachment to Exhibit R1 is a two page computer printout which detailed Mr Holmes' employment history and conversations or file notes between Departmental Officers and Mr Holmes. Exhibit R2 contains legislation which was current as at 12 November 1991, on which is detailed handwritten notes indicating legislative changes from 29 September 1995. Furthermore, in Exhibit R2 is the Table 3 from the Impairment Tables contained in Schedule 1B of the Act, as it stood at the time originally of Mr Holmes' Disability Support Pension and prior to the time that I am now considering this matter.

The legislation which covers this particular application for review is contained within section 94 of the Act. As has been discussed during this case, the requirements - the legislative requirements, for Disability Support Pension have changed over time but basically the issue and the legislation which I am required to look at considers particularly the issue, relevant in Mr Holmes' case, of whether or not Mr Holmes has a continuing inability to work. There is no dispute that in terms of the first sections of subsection 94(1)(a) and (b) of the Act that Mr Holmes has a physical condition so he satisfies that part of the requirement. There is also no dispute, as Ms Quinn has noted, that Mr Holmes meets the 20 point requirement. He needs to have at least 20 points and he has that, so the remaining issue is in terms of the legislative requirement contained within subsection 94(1)(c) of the Act which deals with the continuing inability to work and that is qualified by subsection 94(2) of the Act. Basically, the legislation that is under contention here is whether or not Mr Holmes' impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next two years.

In addition - and there are two other things that I have to consider one or other of whether or not the impairment of itself is sufficient to prevent Mr Holmes from undertaking educational or vocational training or on-the-job training during the next two years or if the impairment does not prevent Mr Holmes from undertaking educational or vocation training or on-the-job training, that such training is unlikely because of the impairment to enable him to do any work for at least 30 hours per week at award wages within the next two years and that comes from - and I paraphrase, subsection 94(2) of the Act.
Evidence and Submissions of Mr Paul Holmes

I now turn to a discussion of the evidence provided by Mr Holmes.  Mr Holmes told me that he attended school until Year 10 after which he undertook some general labouring jobs including working at Tubemakers in Newcastle and also working for the Newcastle Council, I believe in the nursery.  Mr Holmes is married.  He has five children ranging in ages from nine years - he has a nine-year-old daughter who is his eldest child and he has four sons, the youngest of whom is ten weeks old.  Mr Holmes is currently in receipt of Newstart Allowance.  He lives at home with his wife and his five children. 

Mr Holmes informed the Tribunal that he was injured in Darwin in 1990 when he fell through a glass sliding door, as I understand it.  He severely injured his right arm and hand.  He was hospitalised and operated on by a specialist surgeon, Dr Hargrave.  He was in hospital for approximately 11 weeks on the first occasion followed by a further surgical procedure again in Darwin when he had a vein or nerve taken out of his left leg and inserted into his right arm.  There was considerable blood loss as a result of this injury and significant impairment.  There is no doubt and no dispute about this particular condition or its effects.  Mr Holmes stated that he does not have a great deal of memory going back over those years and it has taken him years to recover and he still has significant disability. 

Mr Holmes told the Tribunal that he has undertaken work since the time of the injury but with some difficulties.  From his evidence and information from Centrelink printouts, it appears that Mr Holmes has worked in a number of positions.  He was delivering papers by driving a truck and delivering these papers from about 15 December 1994 until 7 April 1995 with Northern Distributors.  He also worked undertaking similar duties with another company called Manhood Transport and that covered a period from about 13 November 1995 until when he ceased on about 16 September 1997.  During the course of this employment and I believe in about 1995, Mr Holmes obtained his Class 3A licence to enable him to drive trucks. He undertook only one driving lesson to obtain this licence.  He had previously been driving a truck, not having had the specific Class 3A licence, but it was not required that he have any further lessons than that one.  Mr Holmes told the

Tribunal that when going for his Class 3A licence, he did not tell the RTA officer about his disability and also wore a long sleeve shirt.

Mr Holmes explained that the delivery of papers required the driving of the truck and the transport of papers involved him mainly unloading papers and magazines and the like.  He was assisted with the loading task because this occurred at loading docks and there were always people there to help him.  Mr Holmes stated that the work was not ideal and that he only undertook this type of employment because he wanted to obtain some money for a mortgage on a home. He wanted to support his wife and family as it was at that time.

Mr Holmes stated that the work caused him pain to his right arm and he had to rely a lot on his left arm.  He would have to strap the left arm at night because it was so sore having been overused continuously to enable him to continue working and to compensate for the disability he had in his right hand.  Mr Holmes later took on work on a part time basis at a golf club called the Muree Golf Club working four hours per day, two days per week.  Dr Graham reported in his report that this work was up to 15 to 20 hours per week.  The work involved general purpose cleaning including cleaning tables, toilets, vacuuming and significantly, moving furniture which was of great difficulty for Mr Holmes.  Mr Holmes stated that this latter aspect of the job he could not do and frequently had to ask for help.  He ceased work at the golf club by about September 1999 because it became far too difficult for him.  Mr Holmes has not worked since. 

Mr Holmes described the difficulty with his right and left arm.  Firstly, with his right arm and hand he stated that his thumb, index finger and third finger are numb and this numbness continues up that side of his hand and through his arm to his upper arm.  He has stiffness in the morning, restrictions and in winter he noted that his hand is often blue.  There is constant aching of the hand.  It is scarred and I will later in this decision describe the diagnosis of the particular condition.

Mr Holmes stated that he is able to shower himself.  He can dress himself but needs assistance with buttons, zippers and shoe laces.  He tries to assist at home undertaking such duties as washing up but he is unable to dry up because of his grip strength and often cuts himself because he does not realise how he is holding a particular item.  There are lawns at home and mainly Mr Holmes' wife will undertake the mowing though he stated that usually Mrs Holmes will start the mower and then he will attempt to undertake the rest.  He does avoid mowing, Mr Holmes was quite adamant.

Mr Holmes can drive a car but some years ago, following a motor vehicle accident arising out of which he was charged with driving under the influence of alcohol or "a DUI", he lost his licence.  Although at recent times he has been able to obtain a driver's licence, he has chosen not to. Mr Holmes stated that when he drove trucks he could cope with that because of power steering but since the motor vehicle accident he has not felt confident and feels that he is not fully in control of driving because of the right arm disability.  If there was a potential accident and he needed to grab the wheel with both hands, Mr Holmes feels that he could not do this.  He does not want to jeopardise his life or those of his family.  Mr Holmes also stated that he does not have a car so there is actually no point in getting a licence.

Mr Holmes further informed me that he does not take any medication for any condition.  He does not take any medication specifically for his condition.  He does not take pain-killers.  Mr Holmes stated that he does some exercises to keep his hand and arm mobile and flexible.  He does not attend any specialist medical appointments in relation to his arm condition.  Mr Holmes stated that in fact he does not like doctors.  He wants to try and avoid having anything to do with them.

In relation to Mr Holmes' left arm condition, he had stated that when he was undertaking the various jobs he would often overuse his left arm to compensate for the lack of capacity in his right arm.  Dr Graham reported on 26 February 2002 in relation to that left arm, that Mr Holmes has mild

but chronic epicondylitis but it has not been treated.  Dr Graham had suggested that Mr Holmes would benefit from steroid injections plus the use of a tennis elbow arm support band.  Mr Holmes stated that he has not undertaken any of this treatment recommended by Dr Graham because he says that while he is not doing anything specifically with his left arm then he is not troubled by it.

Mr Holmes also stated that he has attended rehabilitation through the Commonwealth Rehabilitation Service and he was tested physically and vocationally.  He also indicated that he has been provided with some suggestions as to the type of work or re-training that might be suited to his particular capacities but he did not agree with this and in fact asked for another case worker.  In terms of follow up with the Commonwealth Rehabilitation Service it appears to the Tribunal that nothing further has occurred in relation to this and that that rehabilitation service is at this stage in abeyance.  Mr Holmes has also been referred by the Department to a Departmental Disability Officer.  Mr Holmes stated that he had not attended an appointment which was referred to in the Respondent's Statement of Facts and Contentions.  He stated this was because he was informed that pending the outcome of the appeal to the Tribunal this appointment should not be followed until such time as a determination had been made. 

Mr Holmes told me that he was accepted into a TAFE advanced commerce course for which he has completed 14 months out of an 18 month course.  He stated that he had passed some subjects but not others.  Mr Holmes has also been accepted into university through the Open Foundation but he has not followed through with this particular opportunity.  Mr Holmes told me that he has come to the conclusion that because of his physical disability and the associated mental frustration and mental pain arising out of that condition he does not wish to further cause himself or his body any further distress.  Mr Holmes states that he and his wife have had some considerable discussions and that he has come to the conclusion that for him it would be a better quality of life for him to stay at home to be what he calls - and I quote, "house husband" looking after the children while his wife works.  This is the plan once the newborn child is a little bit older. 

Mr Holmes stated that for him to work, be that by re-training, undertaking any further educational courses or on-the-job training, that that physically and mentally will cause him some considerable distress.  Mr Holmes stated that he assists his children who go to school with homework.  He does rudimentary computer work with his left hand.  In terms of the positions suggested as being suited to Mr Holmes' capabilities by Health Services Australia doctor, Dr Aus, she indicated that Mr Holmes could undertake light duty work such as a gate person, an inquiries officer, a radio controller or a supervisor.  Mr Holmes stated that he could not do any of these positions both from a mental and physical point of view. 

In terms of Dr Graham's suggestions of light duties work such as in telesales, teleservice or as a console operator at a service station, Mr Holmes also stated that he could not do this work nor did he agree with Dr Graham's recommendations that Mr Holmes was suited to on-the-job training.  Mr Holmes noted that Dr Aus had seen him only for an extremely short period of time and was not really in a position to assist him about anything let alone his future work capabilities.  Furthermore, and just to reiterate, Mr Holmes did not consider that the recommendations suggested to him by the Commonwealth Rehabilitation Service counsellor were suited to him.  Mr Holmes did agree that he had previously and since the accident (I refer to the 1990 accident) undertaken work and learned on-the-job without much difficulty.

Mr Holmes stated that he was able to do well at school in all of his subjects and had no difficulties with his intellectual capacities.  One of the difficulties, however, that Mr Holmes wished to press upon the Tribunal was his difficulty with concentration.  He said that that affected him and in terms of trying to write when undertaking further formal study he had difficulty writing with his left hand.  Whilst he is able to do this he stated that he is slow and in fact Mr Holmes noted that Mrs Holmes writes most of the documents needed for Mr Holmes to complete, he will just sign them.

In terms of Newstart Allowance and the requirements to contact prospective employers, Mrs Holmes does that.  She phones those prospective employers and then records the details on the necessary forms.  Mr Holmes stated that he has difficulties in using public transport.  He has difficulties getting his wallet out of his pocket; of trying to hand over tickets and in fact he becomes embarrassed.

Part of the evidence and Mr Holmes' submissions to me is that he does not think that he can work or retrain from the point of view of his physical condition and the consequences from his mental health point of view, from his "mental pain" as he referred to it. Those two factors combined, make it impossible for him to work.  He becomes very frustrated by the attempts that he has made and sees that every time he does attempt to do something then there is an obstacle which is put in his way.

Mr Holmes reiterated a number of times during the hearing his frustration at having been accepted in previous years as qualified for a Disability Support Pension and now he is not qualified.  He noted that his circumstances have not changed, he still has the same physical condition and the consequences of that.  He has to think hard how to undertake certain tasks and has to concentrate with great difficulty.  Furthermore, Mr Holmes indicated that he is scared of undertaking certain tasks and in fact on occasions he noted that he panics.  He has had to make a decision about the quality of his life and that decision involves his belief and attitude that it is better for him to stay at home, he cannot work and that it is in terms of the overall aspect and continuing quality of his life, that it is better for his wife to work. This is a jointly held shared view.

Medical Evidence 

I have referred to Dr Aus' opinion and what she in fact considered to be the restrictions and work capabilities of Mr Holmes. 

There is a further report from Dr Graham, which I will quote from, because it is a very extensive report.  This report is part of an attachment to Exhibit R1 and the report was undertaken on 26 February 2002 following an interview that Mr Holmes had with Dr Graham in Newcastle on 25 February 2002.  Mr Holmes was found by Dr Graham to have:

"…an entirely typical high median nerve palsy in the right arm associated with a division of the insertion of the biceps brachii.  This has left him with a very significant impairment of right hand use associated with some weakness of flexion of the elbow." 

In relation to Mr Holmes' left arm, Dr Graham noted that Mr Holmes is suffering a mild but chronic lateral epicondylitis which had not been the subject of treatment.  Dr Graham concluded that the conditions both of the right and left are stable although in the case of the left arm, this has been in the absence of effective treatment and, as I mentioned earlier, the treatment suggested was steroid injection and a tennis elbow arm support band.

In terms of the right arm, Dr Graham considered the Impairment Tables contained in Schedule 1B of the Act and from Table 3, he noted that the rating of 20 points was appropriate noting that this was indicated by a demonstrable evidence of major loss of strength, mobility, coordination, dexterity and of sensation of that right arm which was the dominant upper limb. There was significant interference with hand function and manual handling. In relation to the left arm, while there was a note of some loss of strength and mobility the rating was considered to be zero points and the combined rating using the requirements of Schedule 1B was at 20 points.

In terms of work function or capacity, that is what Mr Holmes is able to do or not do, Dr Graham opined that the disability prevented Mr Holmes from carrying out tasks requiring bimanual dexterity or heavy manual handling thus Mr Holmes was considered by Dr Graham to be unable to perform tasks requiring precision use of the dominant hand, for example, considerable writing or keyboard or data entry, word processing and industrial process work.

Dr Graham furthermore noted that Mr Holmes had worked with the disability and that he had been employed since the injury as a truck driver doing bulk newspaper deliveries and as a commercial cleaner.  Those occupations Dr Graham considered to be moderately heavy occupations and that they were not suited to Mr Holmes' disability and it was reasonable to expect and to find as Dr Graham did that Mr Holmes had significant problems persisting with those tasks.  Dr Graham concluded that the medical disorder would not prevent Mr Holmes from performing other duties. Dr Graham noted that Mr Holmes has not sought to obtain employment of a lighter character nor has he undertaken any training or work experience which might increase his opportunities for more appropriate employment.

Dr Graham further concluded that it is clear that Mr Holmes has a significant residual work capacity which had not been fully utilised as Mr Holmes has persisted in employment not suited to his disability.  Dr Graham noted that Mr Holmes has an honestly held belief that he is totally unfit for work.  Dr Graham opined that Mr Holmes' attitude was an inaccurate generalisation which he had reached from his work experience.  In Dr Graham's opinion, Mr Holmes' impairment is not sufficient of itself to prevent him performing work for at least 30 hours per week at award wages in the next two years. 

While Dr Graham acknowledged on several occasions in his report that Mr Holmes' disability is a significant disadvantage in terms of obtaining such employment, it is not a disqualification.  Thus Dr Graham noted that Mr Holmes is physically capable of work such as  "shop sales work of a lighter character, telesales and teleservice work, and working as a console operator at service stations".  Furthermore, Dr Graham concluded that Mr Holmes is capable of lighter manual jobs where heavier manual handling is only of an intermittent requirement.  This would include some cleaning and caretaker jobs.  Other jobs thought of as suitable included some driving jobs such as light courier work and taxi/hire car operation.

In terms of capacity for training, Dr Graham concluded that Mr Holmes is capable of undertaking training appropriate to his needs, be this vocational or educational, and that he is, "well suited to on-the-job training".  The first step in Mr Holmes' rehabilitation, Dr Graham stated, would be ideally for him to address medical treatment for his left arm with the aim of resolving his tennis elbow, that is the condition referred to as lateral epicondylitis. Dr Graham reiterates that Mr Holmes should use a tennis elbow band and a series of three steroid injections.  Furthermore, in terms of the rehabilitation process, Dr Graham concluded that Mr Holmes could benefit from some vocational counselling advice regarding appropriate directions for further job seeking and whether some additional practical qualifications would be useful.  As I understand it, that recommendation led to the attempt to have Mr Holmes consult with a Departmental Disability Officer.

The other medical report that was provided of more recent times is that by Dr M. L. McGinty.  Dr McGinty is a Health Service Australia Medical Adviser and General Manager of the Newcastle branch of Health Services Australia.  Dr McGinty had considered Dr Graham's report and noted that with regard to the right upper limb that this is a dominant limb and that there was significant interference with function which resulted in an impairment rating of 20 points.  In terms of the left arm, that resulted in mild interference with function and it was noted that the impairment rating for the condition was zero points.  There was a suggested course of treatment which Dr McGinty noted.  In summary, what Dr McGinty found referring to Dr Graham was that Mr Holmes has a total impairment of 20 points and that in the opinion of Dr Graham and therefore in the opinion of Dr

McGinty, that Mr Holmes has a residual work capacity sufficient for a number of different occupations for 30 hours per week. 
Respondent's Submissions

In terms of the submissions provided by Ms Quinn for the Department, Ms Quinn noted the change in legislation from that applicable when Mr Holmes was first on the Disability Support Pension to what is currently in force and to which must be applied to my decision.  Ms Quinn noted that by way of example referring to previous Commonwealth medical officers' reports about Mr Holmes' capacities - and specially referring to a report by Dr Robinson (T20) that if what Dr Robinson had described and reported in the documents, the T Documents, if that was applied to the current legislation then it would probably be the case that Mr Holmes' Disability Support Pension would not have been continued.

There is no argument from the Respondent that Mr Holmes has at least a 20 points impairment rating. There is also no argument that he has a physical disability so he meets some of the legislative criteria. From the Respondent's point of view he therefore meets part of the requirements of section 94. The issue relates to Mr Holmes' continuing ability to work. Ms Quinn noted that applying the required legislation and noting Mr Holmes' evidence and the objective medical evidence, particularly Dr Graham's opinion, in the Respondent's view, Mr Holmes has an ability to undertake lighter duties work particularly in those positions and vocational categories reported by Dr Graham.

Furthermore, Ms Quinn noted that Mr Holmes has the ability to re-train, particularly, and again as emphasised by Dr Graham, to undertake on-the-job training. He does have difficulty with his left arm but this, in Ms Quinn's submission, is not a fully treated and stabilised condition and this is noted by Dr Graham. In terms of the Schedule 1B to the Act and the Impairment Tables, this left arm condition cannot be taken into account until it is fully stabilised and treated. Ms Quinn was at pains to emphasise that the Respondent accepts that Mr Holmes does have significant disabilities and disadvantage but, in her submission, he is not precluded or barred from lighter duties work or training within the next two years.

Ms Quinn further submitted that the test that must be applied to a consideration in this matter must be an objective test and should not take into account attitudinal factors such as quality of life choices and factors concerning the labour market factors.  Ms Quinn noted the Federal Court case of Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444. In that case, Drummond J noted a number of things and I paraphrase from particularly paragraphs 26 and 27 that Drummond J noted that it could be seen clearly enough that the intention of the current subsection 94(2) is that the question of a Disability Support Pension applicant's continuing inability to work because of his or her impairment, is to be determined by reference firstly to whether the impairment is sufficient to prevent him or her engaging in any of the necessarily limited range of work for which he or she has the requisite skills and experience and then by reference to whether there is training available of the kind that should fit in within a two year period, for work which he or she cannot now do, but would be able to do given his or her actual capacities. In making such a decision on the second of these issues, the only circumstances that Drummond J noted which were particular to the claimant and which the Secretary can take into account, is whether the claimant's impairment itself may prevent him or her from completing what would ordinarily be no more than a two year training course in that time.

At paragraph 27 of Secretary, Department of Social Security v Pusnjak (supra), Drummond J noted that it is clear from the extraneous material that the legislature intended that the Secretary of the Department, in applying the test, should disregard attitudinal factors peculiar to the Applicant such as a lack of motivation which is a term referred to in the legislative qualification to impairment

contained in subsection 94(2) of the Act. This did not mean in Drummond J's reasoning that the terms impairment contained within subsection 94(1)(a) is a narrow concept. A psychiatric condition caused by a physical injury can be just as much a part of the impairment as the physical injury itself.

Subsection 94(1)(a) of the Act prevents the Secretary, in applying subsection 94(2), to disregard such a disabling psychiatric consequence of a physical injury. Paragraph 28 of Secretary, Department of Social Security  vPusnjak (supra) noted that subsection 94(2) of the Act involves no departure from the intent of the 1999 version of the section. The necessarily limited range of work activities for which a particular claimant is fitted by his or her actual skills and experience is not to be ignored in determining the eligibility for pension. Ms Quinn noted that the decision in that case must, while looking at some widening of the concept of subsection 94(2) of the Act, cannot take into account matters such as motivation and attitudinal factors. It should though take into account issues such as actual work skills and capacity to train.

Ms Quinn submitted that Mr Holmes has demonstrated his ability to train on-the-job.  He has further demonstrated his ability to undertake further studies.  He is not prevented from doing so because of his physical condition but by attitudinal and motivational factors.  Ms Quinn submitted that based on Dr Graham's expert opinion, Mr Holmes has considerable residual capacity to re-train, particularly on-the-job training and that he has the capacity with his particular skills and attributes to undertake lighter duties position.  Ms Quinn noted that Mr Holmes is able to sit; he is able to stand; he can learn and that whilst he does have significant impairment it does not completely disbar him from undertaking either further lighter duties work or training.  In all of those circumstances, Ms Quinn urged upon me that the decision under review should be affirmed.
Findings

I have reached my decision in this matter, taking into account the evidence, that is the oral evidence, the documentary evidence, the legislation and case law. 

Clearly, Mr Holmes had a significant injury in 1990 which has left him with a disability of the right hand and arm.  This has been diagnosed by Dr Graham as a high median nerve palsy in the right arm associated with a division of the insertion of the biceps brachii. There is significant impairment of the right hand and arm associated with weakness of flexion and also there is some elbow disability.  There is also a problem with his left arm in that Mr Holmes has been diagnosed as suffering from a mild but chronic lateral epicondylitis.  This condition has not been treated fully.  It has therefore not been fully stabilised and the recommended treatment of steroid injection and a tennis elbow support band has not been applied.

Because of the requirements of Schedule 1B to the Act which deals with the Impairment Tables, because the left arm condition has not been fully stabilised and treated in line with the expert medical advice and recommendations, I am not able to take that into account in terms of finding an impairment for the left arm. That, however, does not cause Mr Holmes any great detriment in terms of the impairment rating because I find that in relation to the impairment rating appropriate to Mr Holmes, that that is in fact at least 20 points from Table 3 of the Impairment Tables. Therefore Mr Holmes has met the requirements of subsection 94(1)(b) of the Act. He also has obviously met the requirement of subsection 94(1)(a) of the Act in that he has a physical condition.

The issue for the Tribunal to decide upon is in relation to subsection 94(1)(c) of the Act which deals with Mr Holmes' continuing inability to work as qualified by subsection 94(2) of the Act. That is, I must make a determination in terms of whether or not Mr Holmes' impairment of itself prevents him from undertaking any work within the next two years for at least 30 hours per week at award wages and either that the impairment is of itself sufficient to prevent him from undertaking

educational or vocational training or on-the-job training during the next two years or that if the impairment does not prevent Mr Holmes from undertaking educational or vocational training or on-the-job training, that such training is unlikely, because of the impairment, to enable him to do any work for at least 30 hours per week at award wages within the next two years.

I find that Mr Holmes has a significant disability including functional disability arising out of the injury he sustained in 1990 in terms of the right arm and the hand. However, considering the evidence and the objective and expert opinion of the Occupational Physician, Dr Graham, I find that Mr Holmes is not completely disabled to the extent that he is not able to do any work.  I have considered the Federal Court decision in Secretary, Department of Social Security v Pusnjak (supra) and I find that the facts of that case including in relation to Mr Pusnjak and his intellectual abilities, skills and attributes have no application to Mr Holmes' circumstances.  Mr Holmes is a person who is able to read and write.  He is not illiterate.  He is able to intellectually undertake a number of tasks and this is evidenced by the fact that he was accepted into the advanced commerce course and has completed 14 months of the 18 month course.  He has no diagnosed psychiatric condition.

Furthermore, while Mr Holmes has modestly said that in terms of his university admission that anyone who is in his situation would have been able to gain admission, I think that he does himself some disservice and that it is clear that he has the capacity to undertake such training if he wished to do so.  It is also clear to me from the evidence that Mr Holmes was able, since the time of his injury in 1990, to undertake on-the-job training in terms of the truck driving jobs.  Whilst those jobs, in terms of the unloading was not particularly suited to Mr Holmes and, as Dr Graham noted, involved some heavy manual work which I do not think at all is suited to Mr Holmes, he still demonstrated by doing that work that he had the capacity to learn on the job.  It is certainly open to him, I find, on the evidence, that is, from his own evidence and from the evidence of Dr Graham in particular, that he has some residual capacity to undertake some on-the-job training or to equip himself by undertaking some vocational training which would lend itself to assisting him to work in positions better suited to his particular condition.

I consider that particularly the jobs indicated by Dr Graham and I refer  here to those of lighter character work such as telesales, teleservice work, working as a console operator and some light manual jobs would be suited to Mr Holmes.  I do not think that he would be capable of undertaking heavy manual work. Certainly, caretaker jobs may be within his capacity but not heavy cleaning work and particularly I refer to Mr Holmes' difficulties with the work at the golf club.  I also have taken note of Mr Holmes' evidence that he finds it difficult to concentrate and that this is part and parcel of his disability that it is from his physical condition that his inability to concentrate arises.  I have seen Mr Holmes conduct himself within this hearing and he has not evidenced any inability to concentrate. 

Furthermore, and most particularly, I note that Dr Graham as an Occupational Physician has expertise involving looking at all of a person's conditions, abilities and capacities in terms of their ability to work or re-train to do other work.  Dr Graham could find nothing in his report following his examination that would indicate any difficulty for Mr Holmes in terms of either physical or mental capacity for training or for rehabilitation.  No mood disorder was found by Dr Graham. The impairment, Dr Graham noted, "is not sufficient of itself to prevent him performing work for at least thirty hours per week at award wages in the next two years. "  Whilst the disability is a significant disadvantage in obtaining such employment, Dr Graham opined that it is not a disqualification and I must agree with that conclusion.

Accordingly, I find that Mr Holmes does not have a continuing inability to work or to re-train, particularly re-train undertaking on-the-job training.  It is my view that the difficulty for Mr Holmes is that he has not, on his evidence both oral and documentary, attempted to test his

abilities and his skills with which I think he should find some pride.  He has not availed himself fully of the opportunities that are available to him.  In this regard, I would recommend that Mr Holmes avail himself of the services of the Department's Disability Support Officer, to explore his particular capacities and skills along the lines of that mentioned particularly by Dr Graham.

Accordingly, I find on all of the evidence, that is the documentary and the oral evidence and applying the legislation, that Mr Holmes does not have qualification for a Disability Support Pension under the requirements of section 94 of the Act as a whole. It is important for Mr Holmes to understand that one must satisfy all of those particular requirements. Because subsection 94(1)(c) as qualified by subsection 94(2) of the Act is not satisfied, then the requirements of section 94 of the Act as a whole are not met. Having decided that, I must then accordingly decide that the decision under review is affirmed.