Howard, John Campbell v Director-General of Social Security

[1983] FCA 394

Re: JOHN CAMPBELL HOWARD
And: DIRECTOR-GENERAL OF SOCIAL SECURITY
QLD G106 of 1983
Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Fitzgerald J.

CATCHWORDS

SOCIAL SECURITY - whether the Tribunal misdirected itself in that it relied upon the decision of Sheely instead of Panke - incapacity - "person who is sick and a person who thinks that he is sick".

Sheely v. Director-General of Social Security ALN NSW 206

Panke v. Director-General of Social Security (1981) 4 ALD 179

HEARING

BRISBANE

#DATE 14:12:1983

ORDER

1. The appeal is dismissed.

2. There is no order as to costs.

JUDGE1

This is an appeal on a question of law from the Administrative Appeals Tribunal given on 19 October 1983. The Tribunal affirmed the decision to refuse the applicant an invalid pension.

The applicant was born on 2 August 1928. On 2 May 1970, he was a passenger in a motor vehicle which struck a depressional rut in a road causing him to hit his head on the roof of the vehicle. He claims to have experienced health problems since that incident. The Tribunal found, and its finding was supported by a substanial body of medical evidence, that the applicant's claims that he experienced various physical symptoms were not substantiated. The Tribunal also found that the evidence did not support the existence of any disabling psychosis. It preferred the evidence of a specialist psychiatrist to that of a psychologist who has no medical qualifications who considered that the applicant is suffering from a moderately debilitating level of depression. The psychologist considered that the applicant would like to become a fully functioning member of the community again but that that would require "a sustained physical and cognitive effort" which was beyond the applicant's capacity. The psychologist's opinion was that the applicant is suffering from a moderate level of depression but the psychiatrist was of the view that the applicant gave no indication of depression.

Speaking of the applicant, the Tribunal said:

". . . It may well be that he experiences feelings of frustration and irritation such as are experienced by many members of the community. This is not to say that he suffers from some psychotic condition disabling him from engagement in the workforce.

Permanent incapacity for the purposes of the Social Security Act must result from a medical disability either physical or psychic. The medical disability must be of such significance that the incapacity can be said to arise or result from it otherwise the term 'invalid pension' would not be appropriate. There is a distinction to be drawn between the person who is sick and one who thinks that he is sick (Sheeley v. Director-General of Social Security ALN NSW 206).

Upon a consideration of the evidence I am not satisfied that the applicant is permanently incapacitated for work to the degree of 85% or more. It may well be that he is unable to engage, by reason of his age and by reason of a propensity to stumble in a squatting position referred in the evidence of Dr Carol in some of the heavier occupations previously undertaken by him. The 'Amway' business which is apparently still undertaken by him on a part-time basis would, in the light of the evidence, be within his capacity to perform as would work of a clerical kind. It was evident to me when the applicant gave evidence that he is both intelligent and literate. He gained entry to the University of Queensland and completed a year of an Arts-Law course.

For the foregoing reasons, I affirm the decision under review."

The Tribunal's error of law according to the applicant's notice of appeal to this Court, is that it misdirected itself in that it relied upon the decision of Sheely, supra, wherein it should have relied upon the decision of Panke v. Director-General of Social Security (1981) 4 ALD 179.

Panke was a decision of a Tribunal consisting of J.D. Davies J., President, Mr A.N. Hall, Senior Member and Dr M. Glick, Member. Mr Hall and Dr Glick gave joint reasons for their decision which were agreed to by J.D. Davies J. who, however, expressed additional views, on what he described as "the crux of the issue". Sheely was a decision of J.D. Davies J. given almost a year later in which his Honour considered that he was following what had been decided in Panke and indeed quoted at length from what he had said in the earlier case. It would be suprising indeed if the two decisions were inconsistent. It is unnecessary for present purposes for me to pass upon everything which has been said in the decisions of the Tribunal to this point and I do not propose to do so, particularly as any attempt would likely only add to future debate concerning the formulation of the appropriate test.

In Sheely Davies J. said:

"From the context in which the term permanently incapacitated appears, it may be inferred that the incapacity must result from a medical disability whether that disability be physical or psychic. A disability for the purpose of these sections, includes all recognized medical conditions, injury, disease, psychosis, neurosis and the like. It comprehends the incidents of medical conditions such as shock, upset and the functional consequences of injury or disease. It includes those cases of psychic illness which, whether or not they are properly classified as psychosis or neurosis nevertheless have the consequence that the affected person is a sick person . . .

The concept 'permanently incapacitated for work' therefore has a very wide application. Nevertheless, it is not unlimited and at its boundary there is a distinction between a person who is sick and a person who thinks that he is sick. This distinction may trouble lawyers more than it has troubled medical practitioners. . . . "

(I interpose to say that if it be correct that lawyers have a greater difficulty than medical practitioners in this field, one reason may be the semantic difficulties which are inherent in attempts to articulate the sort of distinctions which are involved.) In Panke, Mr Hall and Dr Glick in their joint reasons said:

"The assessment of the degree of incapacity for work in fact involves two quite distinct steps - firstly an evaluation in purely medical terms of the person's physical or mental impairment and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work (see Attorney's Text Book of Medicine, 3rd Edn. 1979, by R. Gray, Vol. 4, Chapter 181 including Preface). The first questions is entirely within the competence of a suitably qualified medical practitioner. The second question, depending on the nature and extent of the physical impairment and the experience of the medical practitioner may not be. Whilst medical practitioners frequently turn their minds to such issues in workers' compensation, motor vehicle and industrial accident claims, it may be a question which, in some cases, is more appropriate for consideration by an administrator with a wider knowledge of the type of work which a person so disabled may be capable of performing.

In our view, it is not enough for the purpose of s.23 of the Act, to have regard in any abstract sense, simply to 'jobs that exist as jobs' in the community. The provisions of the Act with respect to unemployment benefits (see in particular s.107(1)(c) above) indicate that when the Act refers to capacity for work, it is concerned with the capacity to undertake paid work that is suitable to be undertaken by a person. It is only after a fair assessment of the extent of the person's physical or mental impairment and the impact which that impairment is likely to have upon his capacity to undertake suitable paid work that, in our view, a proper assessment of the degree of incapacity can be made.

The assessment of what work is suitable to be undertaken by a person would appear to require consideration of matters such as the nature and extent of his disabilities, his capacity to sustain his work effort throughout a normal working day or week, his age, his previous work experience and the types of paid work available in the community which a person with those characteristics may reasonably be expected to be able to perform."

Reliance was also placed by the applicant upon McGeary (1982) 4 A.L.R. 310 which is consistent with the previous law.

Properly understood, there seems to me to be no difficulty in acceptance of the statement in Sheely that there is a distinction between a person who is sick and the person who merely thinks that he is sick, or perhaps who merely says that he is sick. A belief in illness can cause or reflect the existence of illness can cause or reflect illness which is psychotic or neurotic rather than physical in origin. However, a belief in the existence of an illness in oneself does not automatically mean that such an illness exists. The existence of illness however based is ultimately a question a fact. In the present case the Tribunal had before it ample evidence which it accepted in preference to other evidence which supported the conclusion of fact at which it arrived.

The Tribunal further found that such restriction of the applicant's work capacity as existed was not an illness-based incapacity, but derived from his age and a propensity to stumble in a squatting position which had been referred to in the evidence of Dr Carroll. Dr Carroll's evidence, which was accepted by the Tribunal, was summarized by the Tribunal in the following terms:

"Dr Carroll also stated that from an orthopaedic point of view he would place no limitations upon the applicant's ability to work. As to the applicant's inability to squat, he could see no orthopaedic explanation for this. This was susceptible of two explanations. One was that the applicant was feigning his inability to squat (which he did not believe) and the other was that he had toppled over because he could not balance himself. He did not think that the applicant would be capable of carrying out work previously performed by him in the construction field because of his apparent inability to balance properly and 'because of his general muddle headedness'."

Finally, the Tribunal found that although the applicant may be unable to engage in some of the heavier occupations previously undertaken by him, he is able to work in a business which he continues to conduct on a part-time basis, and to perform work of a clerical kind for which he is suited and qualified. The Tribunal's findings on the question of fact expressly negative a number of essential elements upon which the applicant must depend to succeed.

In my opinion, the appeal must be dismissed. There is no order as to costs.