Ilka; Secretary, Department of Employment and Workplace Relations
[2006] AATA 828
•29 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 828
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/206
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
BEVERLEY ILKA
Respondent
DECISION
Tribunal Deputy President P E Hack SC
Dr M L Denovan, MemberDate29 September 2006
PlaceBrisbane
Decision The decision under review is affirmed. ..............Signed...............
Deputy President
CATCHWORDS
SOCIAL SECURITY – disability support pension – principal impairment rheumatoid arthritis – rating of 20 points conceded – continuing inability to work – the undertaking of vocational training would not enable work within the next two years – Tribunal affirms the decision under review
Social Security Act 1991 ss94(1)(2)(3)(4)
Employment and Workplace Relations Legislation Amendment (Welfare to Work and other Measures) Act 2005
Jones v Dunkel (1959) 101 CLR 298
Secretary, Department of Social Security v Pusnjak [1999] FCA 994; 56 ALD 444
REASONS FOR DECISION
29 September 2006 Deputy President P E Hack SC
Dr M L Denovan, MemberIntroduction
1.The applicant, Mrs Beverly Ilka, suffers from significant impairments. She started to receive disability support pension from September 1995. In June 2005, on the basis of a work capacity assessment undertaken by a rehabilitation consultant, the applicant, the Secretary of the Department of Employment and Workplace Relations, determined that Mrs Ilka’s impairments were insufficient for her to qualify for disability support pension.
2.Mrs Ilka sought reconsideration of the decision. After what was said to be “careful consideration” it was affirmed by the original decision maker, seemingly on the same day as the original decision. It was again affirmed two days later by an authorised review officer.
3.Further evidence was provided to the Secretary by specialist medical practitioners, Dr Gunsberg, a rheumatologist who has been treating Mrs Ilka for over 10 years, and Dr Coyne, a neurosurgeon. In November 2005 the Secretary arranged for another work capacity assessment to be undertaken, this time by an occupational therapist. This assessment concluded that Mrs Ilka’s level of impairment was insufficient for her to qualify for disability support pension and that she would be able to return to work for 30 or more hours per week with training.
4.In light of this material the Secretary determined to cease payments to Mrs Ilka with effect from 1 December 2005.
5.Mrs Ilka sought a review of the decision by the Social Security Appeals Tribunal. On 16 February 2005 that Tribunal set aside the decision and substituted a decision that Mrs Ilka was qualified for disability support pension.
6.The Secretary seeks a review in this Tribunal of the decision of the Social Security Appeals Tribunal.
7.We note, for the sake of completeness, that on 20 April 2006 the Secretary obtained a stay of the implementation of the decision of the Social Security Appeals Tribunal pending the hearing of the substantive application. That stay was not extended at the hearing on 14 September 2006.
The Legislation
8.By virtue of s 94(1) of the Social Security Act 1991 a person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b) the impairment attracts a rating of 20 points or more under the Impairment Tables that comprise Schedule 1B to the Act; and
(c) the person has a continuing inability to work (or is participating in a supported wage system); and
(d) the person is aged 16 years or more; and
(e) the person satisfies residency requirements.
There has never been any question that Mrs Ilka has an impairment, is aged over 16 years and satisfies the residency requirements. Thus paragraphs (a)(d) and (e) need not be considered further.
9.There was, until the hearing, controversy about the number of points to be given to Mrs Ilka’s impairment but at the outset of the hearing Mr Belcher, the solicitor for the Secretary, conceded that Mrs Ilka had an impairment that warranted a rating of at least 20 points.
10.The real contest concerned whether Mrs Ilka had a continuing inability to work. That phrase is given meaning by s 94(2) of the Act which provides:
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.
11.By virtue of s 94(3) of the Act we are not to have regard to the availability to Mrs Ilka of the specified training. Mrs Ilka’s age is such that s 94(4) is not relevant. Finally we note that “work” for the purposes of s 94 means work for at least 30 hours per week at award wages or above that exists in Australia.
The Secretary’s Contention
12.The Secretary also accepted at the hearing that Mrs Ilka satisfied s 94(2)(a), that is, that her impairment was, of itself, sufficient to prevent her from doing at least 30 hours a week work within the next 2 years. The Secretary’s case focused upon s 94(2)(b). It was contended by the Secretary:
(a) that Mrs Ilka was not prevented by her impairment from undertaking vocational, educational or on-the-job training during the next 2 years; and,
(b) that the undertaking of such training will be likely to equip Mrs Ilka with the skill to do at least 30 hours of work each week within the next 2 years.
13.To make good these contentions the Secretary relied upon work capacity assessments undertaken by three assessors who saw Mrs Ilka but who were not called to give evidence and another assessor who was called to give evidence but who had not seen Mrs Ilka.
The Nature and Extent of Impairment
14.Given that the nature and extent of the impairments suffered by Mrs Ilka are relevant to the issue of whether she is prevented from undertaking training the appropriate starting place, despite the Secretary’s concession of a 20 point impairment, seems to us to be the medical evidence regarding that impairment.
15.Dr Michael Gunsberg is a specialist rheumatologist who has been treating Mrs Ilka for a number of years. Her principal impairment arises from rheumatoid arthritis which Dr Gunsberg notes causes symptoms of pain and stiffness in joints, reduced function in upper limbs, reduced endurance and fatigability, and sore feet with walking and standing. These symptoms are, according to Dr Gunsberg, gradually progressive, that is, they are getting worse. In addition, Mrs Ilka suffers from lumbar spondylosis causing intermittent low back pain.
16.We have, as well, the benefit of a report from Dr William Douglas, a specialist physician and rheumatologist. He saw Mrs Ilka in May 2006 at the request of the Secretary. His report notes that Mrs Ilka has had surgical fusion of both wrists, that is, she has no movement in either wrist. Radiological investigation:
·revealed a scoliosis convex left and apophyseal joint damaged at LV3 and LV4, consistent with rheumatoid arthritis of the spine,
·confirmed the presence of instability at the atlanto-axial joint,
·showed erosive changes to the left foot, consistent with erosive rheumatoid arthritis in the third and fourth metatarsophalangeal joints and the distal end of the proximal phalanx of the big toe,
·showed erosive arthropathy in the third and fourth metatarsophalangeal joints of the left foot,
·showed marked erosive changes in the left hand with destruction of the second and third MC joints and fusion of the left wrist with marked erosive changes in the joints.
17.By reference to the descriptors in the Impairment Tables Dr Douglas was of the view that Mrs Ilka had a ¾ loss of movement in the cervical spine with restricted rotation, lateral flexion, extension and flexion of the head. He noted constant neck discomfort, and pain on anterior flexion. In relation to the lumbar spine Dr Douglas noted slight restriction with pain on full flexion and extension. He regarded Mrs Ilka as having a ¼ loss of normal range of movement of the thoracolumbar spine with pain occurring with many physical activities and on standing for about 30 minutes.
18.In terms of Mrs Ilka’s upper limbs there was fusion of both wrists and thumbs. Her grip strength was 10 kg right and 8 kg left (her dominant hand). A grip strength in the range of 18-20 kg would be expected for someone of Mrs Ilka’s age. He characterised the level of impairment as one with demonstrable evidence of major loss of strength and mobility, co-ordination and dexterity of the dominant upper limb causing significant interference with hand function or manual handling.
19.Because of the swelling on the dorsum of both feet and restricted movement of the tarsometatarsal joints Dr Douglas regarded Mrs Ilka as having a demonstrable loss of strength, mobility, stability, balance and co-ordination causing moderate interference with walking and standing.
20.It is of more than passing interest that Dr Douglas assessed Mrs Ilka’s impairments as warranting 60 points. 20 points is the qualifying threshold.
21.We have, as well, a report from Dr Coyne, a specialist neurosurgeon. Dr Coyne reviewed magnetic resonance scans that showed rheumatoid involvement of the C1/C2 joint with 5 mm of movement with flexion/extension. In relation to the question of Mrs Ilka’s capacity for employment Dr Coyne said this:
Mrs Ilka’s cervical spine condition would make it difficult for her to manage employment which places stress on her cervical spine, such as employment requiring moderate to heavy lifting, overhead lifting, repetitive bending of the neck, or maintenance of the neck in a fixed position for prolonged periods. Jarring to her neck by extended travel may aggravate her condition such that she would find it difficult to maintain employment.
I can not definitively say that Mrs Ilka would not be capable of undertaking any employment at all for 30 hours or more per week as a result of her cervical spine condition alone. However, such employment would need to be of a sedentary nature which allows her to frequently change position, did not require her to spend long periods with her neck flexed or turned, and did not require a long period of travel to and from her workplace. It is likely that this would require a sympathetic employer. It seems unlikely that many such positions exist, and from a pragmatic aspect it is unlikely Mrs Ilka will be capable of managing any form of employment for 30 hours or more a week.
These comments are made with respect to Mrs Ilka’s cervical condition alone. It may be that other symptoms caused by her rheumatoid arthritis will further restrict her employment capacity. However, comments in this regard would be best made by a rheumatologist.
22.We have no hesitation in accepting the evidence of Dr Gunsberg, Dr Douglas and Dr Coyne. They are all highly qualified specialist medical practitioners.
Mrs Ilka’s Evidence
23.Mrs Ilka is now 50 years old. She left school at the age of 15. She described herself as an average student. She has no post-school training or qualifications. Her principal occupation since leaving school has been as a shop assistant. Her arthritis commenced to afflict her in 1988 and forced her to part-time work. She ceased work as a consequence of the arthritis in 1992. She has not worked since then.
24.In her evidence before us Mrs Ilka showed remarkable fortitude and a degree of stoicism in relation to what is plainly a debilitating condition.
25.She lives on a 5 acre rural block at Fernvale with her husband. She does most of the house work although her condition is such that she takes much longer than normal to complete simple tasks. Thus, she was capable of vacuuming the house but she needed to stop after 5 to 10 minutes of doing so. She could do the washing and the ironing, but not on the same day. She could drive for about 30 minutes at a time before the pain in her neck forced her to take a break. She had to rest for a couple of hours per day.
26.We were impressed by Mrs Ilka and were satisfied that her evidence is accurate and truthful. Her account of her limitations was not overstated or over dramatised; if anything Mrs Ilka had a tendency to downplay her difficulties.
The Work Capacity Assessments
27.The Secretary put before us extracts from the Guide to Social Security Law, a policy guide for those required to give effect to the Act. The Guide, it was said,
indicates a shift in policy to engage organisations contracted to the Government to provide comprehensive assessments addressing issues related to ability to work.
We accept that submission however in some ways it misses the point. It really does not matter who provides the assessments so long as there is self-evident independence, proper qualification and appropriate understanding of the issues on the part of those who make the assessments. We will return to that aspect presently however it will aid in understanding our reasoning if we set out the definition of a “Job Capacity Assessment” which is described in the Guide in this way:
[Job Capacity Assessments] are a holistic, comprehensive assessment of an individual’s:
· barriers to finding and maintaining employment (this may relate to the impact of a person’s disability, medical condition and/or other disadvantage/s they may have),
· current and future work capacity (in hour bandwidths),
· the interventions/assistance that are appropriate to help a jobseeker to improve/maximise their current work capacity.
28.There have been four work capacity assessments[1] undertaken in relation to Mrs Ilka although, as we have observed, none of the authors was called by the Secretary. We propose to examine each of them, bearing in mind that the two key issues are:
·whether Mrs Ilka was prevented by her impairment from undertaking vocational, educational or on-the-job training during the next 2 years;
·whether the undertaking of that training will be likely to equip Mrs Ilka with skills to do at least 30 hours of work each week within the next 2 years.
[1]The term appears to be synonymous with job capacity assessment which appears to be the post 1 July 2006 nomenclature.
29.The first work capacity assessment was undertaken by Mr Mark Thompson in April 2005. He is described as a “Rehab Consultant” with a qualification in “Human Movements” employed by Serendipity (WA) Pty Ltd which trades as Advanced Personnel Management (APM). APM, we were told by Ms Hall, has the Australia wide contract to undertake these assessments.
30.Mr Thompson noted the following “barriers” to economic and social participation
· physical limitations
· limited employment history
· limited skills/experience
· endurance limitations
· manual dexterity limitations
· mobility restrictions.
The form that Mr Thompson was completing next required him to consider “appropriate interventions … that will address the barriers identified …” That seems to us to assume that there can never be a “barrier” that is not capable of being addressed by appropriate interventions, an assumption that must be fundamentally flawed. Reference to the “Assessment Codes Supplement”, tendered by the Secretary to aid our understanding of the assessment process, appears to us to confirm that the process proceeds upon this assumption. In any event Mr Thompson identified vocational rehabilitation, job seeking/post placement support, post-secondary adult short courses – vocational and surgical treatment as appropriate interventions.
31.Part E of the form required an assessment of the capacity for work, first without any intervention programmes and then with educational or vocational training or on-the-job training, on four time frames from the time of the assessment to more that 2 years post assessment. Mr Thompson expressed the view that, without intervention, Mrs Ilka was then capable of working 8 to 14 hours per week in low level, light work that allowed changes in position and little flexion of the neck. He gave ticket seller or information desk assistant as examples of available employment. He considered that within 6 months and into the foreseeable future Mrs Ilka had a capacity, without any intervention, to undertake 15 to 29 hours of work per week. It is not apparent, from Mr Thompson’s assessment, why he took the view that Mrs Ilka would improve so markedly within 6 months. And, he said, with necessary re-training to increase her skills, Mrs Ilka should be able to return to full-time work within 6 to 24 months, provided it was of a light nature and allowed for body positional changes.
32.Mr Thompson was also required to undertake an assessment of Mrs Ilka’s impairment by reference to the Impairment Tables. Whilst that aspect has now gone by concession it seems to us that reference to the assessments undertaken by the assessors relied upon by the Secretary on the critical issues in the case will assist us in determining whether we should regard their evidence as being reliable on the critical issues. That is, the ratings will enable us to consider whether the critical evidence of these assessors is realistic.
33.On Table 3, upper limb function, Mr Thompson gave a nil rating (Dr Douglas gave a rating of 20 points). The description given for a nil rating is:
Can use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
On Table 4, lower limb function, Mr Thompson gave a nil rating (Dr Douglas gave a rating of 10 points), an assessment appropriate where the subject:
Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
In relation to Mrs Ilka’s lumbar spine Mr Thompson again assessed nil points (compared with Dr Douglas’ 10 points), against the criteria:
Normal or nearly normal range of movement.
34.No assessment was made of the cervical spine impairment which was recorded as being “temporary” as it had not been fully treated.
35.It is relevant to note this “general summary” made by Mr Thompson of Mrs Ilka’s circumstances and his recommendations arising from the assessment:
She reported she is able to do the groceries and is able to carry the groceries in from the car. She voluntarily displayed normal or near normal [range of movement] in lumbar spine, manual dexterity was within normal limits, however unable to bend wrists, and she was unable to demonstrate cervical [range of movement] due to neck brace. She reported she is able to write, however not as well as she previously could.
Main recommendations are for the customer to receive [vocational rehabilitation], post placement support and to undertake an adult short course which should [raise] her skills, allowing for return to work in 6-24 months. Surgery may be beneficial, however is pending specialists report.
36.After Mrs Ilka had expressed some dissatisfaction with these conclusions Mr Thompson re-visited the matter in June 2005. In relation to intervention activities he added a requirement for secondary rehabilitation, in this case hydrotherapy. He did, however, assess an impairment rating of 15 points for Mrs Ilka’s upper limbs, on the basis of 10 points for her dominant hand and 5 for the other. The nil assessments for the lumbar spine and the feet was continued. There appears to be no explanation for the change of heart so far as the upper limbs assessment is concerned but Mr Thompson commented:
Customer has difficulty when using utensils eg knife – unable to cut pumpkin. Majority of knuckles are swollen and enlarged, although can still do all [activities of daily living] and self-care activities at own pace.
37.Subsequent to this a report was received from Dr Coyne which made it clear that no treatment for the cervical spine was warranted in the foreseeable future.
38.The next work capacity assessment was undertaken by Ms Leah Percival, another APM rehabilitation consultant with qualification, apparently, in occupational therapy. Ms Percival identified the barriers as being manual dexterity limitations, endurance limitations, limited employment history and job seeking skills. She proposed, by way of intervention, vocational rehabilitation and job seeking/post placement support.
39.Ms Percival assessed Mrs Ilka’s then capacity for work without intervention as 0 to 7 hours per week, rising to 8 to 14 within 6 months and more that 15 to 29 hours after 24 months. It was suggested that Mrs Ilka could be employed as an elderly companion or in retail sales. Ms Percival thought that with training Mrs Ilka could manage 15 to 29 hours per week within 6 months and be able to work 30 hours or more per week within 6 to 24 months.
40.In relation to the assessment rating Ms Percival reached the same conclusions as Mr Thompson’s revised (June 2005) assessment with the addition of a nil assessment for the cervical spine on the basis that Mrs Ilka had nearly normal range of movement of the cervical spine.
41.After the proceedings had commenced in this Tribunal, (and following the receipt of the report of Dr Douglas) the Secretary arranged for yet another work capacity assessment to be undertaken by Ms Samantha Bidstrup from APM whose professional discipline is described as “accredited rehabilitation counsellor”. This assessment was undertaken, we infer, on 6 July 2006. The form used for the assessment is quite different to those used in the earlier assessments, presumably as a consequence of changes to the statutory setting following the amendments effected by the Employment and Workplace Relations Legislation Amendment (Welfare to Work and Other Measures) Act 2005.
42.Ms Bidstrup concluded that Mrs Ilka had a then current capacity for work in the range of 23 to 29 hours per week, a temporary capacity of 8 to 14 hours per week and a future capacity, without intervention, of 15 to 22 hours per week. With intervention, Ms Bidstrup assessed future capacity as 30 or more hours of work per week.
43.Ms Bidstrup gave a rating of 5 points for the dominant upper limb, nil for the other upper limb and a rating of 10 points for lower limb impairment. In relation to the lumbar spine an assessment of nil points was made with this comment:
Nearly normal [range of movement]. Observed to pick up bag from floor (when standing, bending from waist). Nil pain behaviour displayed. Sat to 50 minutes in interview. Report 60 minutes sit tolerance in car.
No rating was made of the cervical spine because that condition was temporary. In this way Ms Bidstrup achieved a rating of 15 impairment points. Ms Bidstrup listed only vocational rehabilitation as a proposed intervention.
44.Finally we have a report from Ms Wendy Hall, a senior occupational therapist employed by APM. Ms Hall did not ever see Mrs Ilka, instead her report is directed to explaining and clarifying the earlier assessments of the other APM employees. No explanation was proffered by the Secretary as to why those persons were not available however we regard that absence as a matter of curiosity only rather than as a matter warranting the drawing of adverse inferences.[2]
[2] Cf Jones v Dunkel (1959) 101 CLR 298
45.Ms Hall gave evidence at the hearing by telephone. To the extent to which one may gauge these matters over the telephone we observe that Ms Hall displayed boundless enthusiasm for the tasks that her employer and its employees performed. She had an unshakeable confidence in the ability of the programmes that APM promoted, indeed she seemed, with respect, to regard the occasion of giving evidence as an opportunity to promote the programmes rather than focusing upon the questions put to her. We must say that we found her oral evidence difficult to follow and of little use.
46.But despite those reservations we need to examine her evidence. In her report she first explained what was involved in the interventions suggested by the various assessors. That provides a useful background to the issues that confront us but does not directly concern those issues. We observe, in that regard, that someone in Mrs Ilka’s position, who has been out of the workforce for many years, may well benefit from courses that provide present day skills. But the physical limitations, the endurance limitations, the manual dexterity limitations, chronic pain and mobility restrictions will remain even after such training.
47.What Ms Hall seemed to be saying in that regard is that these physical difficulties could be addressed by a “specific Work Conditioning Programme”. That, according to Ms Hall:
… involves assisting the customer to gradually increase their tolerance for appropriate work activity and can involve a prescribed exercise programme or a self monitored home based activity regime. Both options are always monitored closely by the Allied Health Professional Rehabilitation Consultant and are in conjunction with the Treating Doctor. A Work Conditioning Programme can address issues of Physical limitations, Endurance limitations, Manual Dexterity limitations, Mobility restrictions and Chronic Pain by increasing the customer’s awareness of their actual capacity, reducing “fear” of injury, and increasing appropriate physical activity and endurance.
48.It is difficult to see how programmes of that nature could properly be regarded as falling within the definition of educational or vocational training or on-the-job training. Whilst those expressions are not defined they do not include programmes designed specifically for people with physical, intellectual or psychiatric impairments. It is, on the view we take of the matter, unnecessary to finally determine the question.
49.Next Ms Hall addressed the impact on Mrs Ilka’s overall capacity to work which she described in this way:
… the goal of any Vocational Rehabilitation Service Programme would be to assist the customer to increase their capacity for work through assisting the management her disability, develop work goals and skill and complete a graduated introduction to the workplace in a sustainable role. In this case one of the long term (within 2 years) goals would be a safe return to full time (30+) work per week of a sedentary to light level.
It would also be envisaged that the customer’s identified barriers … be addressed.
Ideally they would manage their pain better, identify themselves as an individual with capacity, be aware of their safe limitations, have improved their problem solving skills and be more confident in their general demeanour and in job seeking.
50.Of more relevance to the present case is Ms Hall’s response to the question posed in the letter commissioning the report that asked her how she explained the views of listed medical specialists (and Mrs Ilka) that Mrs Ilka will be unable to return to work 30 or more hours per week within the next 2 years. Ms Hall’s answer to that question started in this way:
Based on the evidence presented in this file review Mrs Ilka has a capacity to return to 30 + hours of work per week given the above interventions (a Vocational Rehabilitation Service Programme) that will build on her current capacity for activities of daily living.
Ms Hall then went to various matters reported by the earlier assessors as evidence of Mrs Ilka’s current capacity for activities of daily living, that is, self-care activities such as personal hygiene and dressing, together with the performance of tasks performed in and around the house.
51.But, as it seemed to us, there were two difficulties with this approach. First, it seemed to focus upon the best of Mrs Ilka’s capacities without regard for the limitations. Thus reference is made to an earlier reference by Mr Thompson to “regular ‘craftwork and cooking’ and a capacity to drive”. We are unable to see in Mr Thompson’s report of 26 April 2005 any reference to Mrs Ilka engaging in regular craftwork and cooking, rather Mr Thompson said “she reported she is interested in craftwork and cooking”. And, Mr Thompson noted:
She reported she is able to drive an automatic, however had to be careful with shoulder checks due to neck injury/condition.
Similarly, Ms Hall noted Mr Thompson’s comment that Mrs Ilka could “stand for 20 minutes” but did not refer to the passage which immediately follows it. There is a discernible difference, in our view, between “can stand for 20 minutes” and “can stand for 20 minutes until pain sets in”.
52.This tendency to focus upon the best of Mrs Ilka’s capacities without full regard to even reported limitations and qualifications result in Ms Hall presenting a somewhat more optimistic picture than we think is warranted, particularly having regard to the medical evidence and the evidence that Mrs Ilka gave us, which we accept, of her daily life. Thus, Mrs Ilka explained, she did enjoy craftwork, but only for very short periods of time. She could undertake housework but in short bursts and with the benefit of resting for up to two hours per day.
53.The other difficulty with Ms Hall’s approach is that we rather think that Mrs Ilka has a subconscious capacity to understate, rather that overstate, the difficulties that she has. Thus, when Mrs Ilka is recorded by Ms Percival, in a comment adopted by Ms Hall, that she had “no difficulties with buttons, shoe laces, zips” that comment is to be seen as one reporting no difficulties in performing those task beyond the difficulties inherent in performing those task with no flexion or extension in either wrist.
54.There are further difficulties that we have in accepting the opinions of the work capacity assessors and, a fortiori, those of Ms Hall. The first concerns the assessment of impairment points that the assessors have each determined when compared with those assessed by Dr Douglas.
55.In circumstances where we have not seen any of the assessors nor Dr Douglas we must determine which body of opinion is to be preferred by reference to the experience and qualifications of the person expressing the opinion and by the logic and reasoning evidence on the reports put forward by them. On both of these criteria we prefer the opinions of Dr Douglas. It is, of course, relevant, that the Secretary concedes that Mrs Ilka satisfies the 20 point criteria. That must mean that the Secretary accepts that Ms Percival’s assessment is too low, and too low by a significant margin. It may be said of Ms Bidstrup’s assessment of the upper limb impairment that it is so far out of line with all the other assessments, including those of Mr Thompson (the June 2005 version) and Ms Percival, as to cast grave doubt on the reliability of her assessment overall.
56.But beyond these considerations Dr Douglas is a specialist physician whose specialty is rheumatology. He has had in the order of 10 years of medical training. On the face of it he is likely to have a much greater appreciation of the likely limitations on Mrs Ilka of her various impairments, especially when coupled with a physical examination and the capacity to read and interpret x-rays and MRI reports.
57.For these reasons we prefer the opinions of Dr Douglas to those of the work capacity assessors. And if the assessments of impairment ratings by them can be shown, by reference to opinions that we accept, to be demonstrably optimistic then it would seem to follow that their views on other aspects are likely to be wrongly optimistic.
58.The other difficulty that we have with the assessments undertaken by the assessors is that they each start from the premise, which the Secretary accepts is flawed, that Mrs Ilka’s impairments were not sufficient, of themselves, to prevent her from doing any work within the next 2 years. If the premise is flawed then the conclusions about re-training and other interventions must, of necessity, be also flawed.
A Continuing Inability To Work
59.Subsection 94(2) is still in the form that it was when it was considered by Drummond J in Secretary, Department of Social Security v Pusnjak.[3] In the circumstances of the present case it is useful to set out a lengthy extract from his Honour’s judgement:[4]
Effect will be given to the intention of legislation if the secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skill and experience, capable of performing, without the need for retraining? If so: As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next 2 years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the secretary that he has the requisite continuing inability to work. If not, the secretary must proceed to consider s 94(2)(b)(ii) and ask: As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a 2-year period for work which he cannot perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?
[3] [1999] FCA 994; 56 ALD 444.
[4] At p 452, para []32].
60.The first question goes by concession. The Secretary accepts that Mrs Ilka’s impairments, of themselves, prevent her from working for at least 30 hours per week within the next 2 years. We would, in any event, have answered that question favourably to Mrs Ilka had the concession not been made.
61.The next question is whether the impairments are, of themselves, sufficient to prevent Mrs Ilka from commencing, during the next 2 years, retraining of a kind available to her that would fit her for a class of work that she currently lacks the skills to perform, even if unimpaired. And that retraining does not include programmes designed specifically for people with physical, intellectual or psychiatric impairments. The Secretary submits that the only evidence that Mrs Ilka might be so prevented comes from an October 1995 report of Dr Wilkinson. For our part we do not place any reliance upon a view expressed as long ago as 1995, not because of any reservations about its author but rather because of its vintage.
62.But where there are acknowledged to be significant impairments and where the Secretary seeks to persuade us that those impairments would not prevent Mrs Ilka from commencing retraining it is our view that it is not sufficient for the Secretary to merely point to an absence of evidence of the contrary proposition. That is, it seems to us that where the Secretary contends that Mrs Ilka is not prevented by her impairments from undertaking the requisite training during the next 2 years there ought be evidence to support that proposition rather than an absence of evidence of the contrary proposition, a fortiori where this is the Secretary’s appeal and Mrs Ilka was not represented at the hearing.
63.What seems to us to be missing from the report of Ms Hall is evidence of what, precisely, the various interventions would entail and, more importantly, how they would impact upon Mrs Ilka’s impairment. Ms Hall’s report seems to address the philosophy of the proposed interventions rather than the implementation of them. Thus when Ms Hall speaks of an adult short course and suggests a course on office skills or introduction to computers we know nothing of what would be involved in undertaking such a course – its length (beyond “short”), its intensity, its duration on any particular day and such like.
64.We entertain very considerable doubt that Mrs Ilka’s impairments would allow her to undertake training to equip her with the type of skills that Ms Hall suggests Mrs Ilka needs. Despite the optimism of Ms Hall, Mrs Ilka:
·has a significant loss of normal range of movement in her cervical spine with constant neck discomfort;
·has lesser loss of normal range of movement in her lumbar spine with pain on undertaking many activities including standing for periods in excess of 30 minutes;
·has major loss of strength and mobility, co-ordination and dexterity of her dominant hand causing significant interference with hand function and manual handling, and
·lower limb impairment causing moderate interference with walking and standing.
65.None of the work capacity assessments seem to address the issue of whether Mrs Ilka is prevented from undertaking training, rather they assume, with an absence of demonstrable logic, that it could be undertaken and do so in circumstances where the assessors have made assessment of fewer than 20 points. Thus, as it seems to us, the assessments assume that intervention will overcome the barriers without even considering the second question posited by Drummond J.
66.Thus, on our view of the evidence, the impairments suffered by Mrs Ilka are sufficient to prevent her from undertaking training within the next 2 years that would fit her for work that she currently lacks the skills or experience to perform.
67.But even if we had reached a contrary view on that question we would doubt whether Mrs Ilka would be likely, bearing in mind the impact of her impairment on her ability to undertake training, to acquire the skills or experience necessary to fit her for new classes of work within 2 years.
68.Mrs Ilka left school at the age of 15. She has had limited employment, essentially as a shop assistant, and none since 1992. The types of employment that the assessors suggest are not so much ones that need training for new skills, they are types of employment that seek to accommodate Mrs Ilka’s impairment. But the impairments will remain – Mrs Ilka will continue, notwithstanding any amount of training, to have significant difficulties with her upper limbs, her feet and her cervical and lumbar spine. Mrs Ilka might, in theory, be trained, for example, as a secretary but her impairments would continue to prevent her from pursuing that occupation.
Conclusion
69.It follows that in our view the decision of the Social Security Appeals Tribunal was correct and should be affirmed. The stay granted on 20 April 2006 has already ceased to have effect and no order is required in relation to it.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC, Dr M L Denovan, Member
Signed: ......................Signed.............................................
Leisa Pendle, AssociateDate of Hearing 14 September 2006
Date of Decision 29 September 2006
For the Applicant Mr M Belcher, Australian Government Solicitor
Respondent appeared in person
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