Joukhador and Department of Family and Community Services

[2000] AATA 1097

DECISION AND REASONS FOR DECISION [2000] AATA 1097

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    N2000/597

GENERAL ADMINISTRATIVE DIVISION          )          

Re      RAFIC JOUKHADOR        

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member   

Date13 December 2000

PlaceSydney

Decision      The decision under review is affirmed.   

....................................
  A R Horton
  Member
CATCHWORDS

SOCIAL SECURITY – claim for disability support pension – Applicant made redundant in 1991 - whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 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) and 100(3)
Social Security Legislation Amendment Act No1 (1995)

Re Pirie and Secretary, Department of Social Security (AAT 11505, 20 December 1996)

REASONS FOR DECISION

Rear Admiral AR Horton AO, Member          

This is an application for review of a decision dated 23 November 1999 by a delegate of the Secretary, Department of Family and Community Services ("the Respondent"), that Rafic Joukhador ("the Applicant") was not eligible for a disability support pension.  That decision was affirmed by an authorised review officer of the Respondent on 5 January 2000, and further affirmed by the Social Security Appeals Tribunal ("the SSAT") on 15 March 2000.  The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 17 March 2000.

At the hearing before the Tribunal on 1 December 2000, the Applicant was self-represented.  Ms C Collis, solicitor, appeared for the Respondent.
The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Letter from Dr G Hamad dated 15 September 2000.     Exhibit A1     
Letter from Dr G Hamad dated 27 June 2000.   Exhibit A2     
Report from Sydney Imaging Group dated 4 October 2000     Exhibit A3     
Respondent's amended statement of facts and contentions dated 24 November 2000.   Exhibit R1           

1. The Applicant gave oral evidence to the Tribunal, assisted by an interpreter fluent in the Arabic language.

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION

1. The issues before the Tribunal are whether the Applicant has a physical, intellectual or psychiatric impairment that is assessed at 20 points or more under the impairment tables in Schedule 1B of the Social Security Act 1991 ("the Act") and if so, whether he has a continuing inability to work because of that impairment pursuant to sections 94(2) and (3) of 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;

   (ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   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(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

Subsection 100(3) of the Act 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."

Impairment is assessed against the work related impairment tables at Schedule 1B of the Act. The introduction to the tables states, relevantly:

"…

2.        These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.  These Tables are function based rather than diagnosis based…

3.These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work…

…

5.The condition must be considered to be permanent…

…

8.In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it…

…"

FACTS AND EVIDENCE
The Applicant was born in Lebanon in 1938, and migrated to Australia in 1956 (T3).  He gave evidence that he had never worked in Lebanon, and that he attended school about one day each week.  He gained employment with Australian Consolidated Industries (ACI), remaining with that company until it closed the Sydney facility and transferred operations to Tasmania in 1991.  He commenced his employment with ACI as a labourer, but was trained within the company to become a machine operator, manufacturing glass products such as jars in what he described as very hot conditions.  He also undertook cleaning and packaging duties "as assigned".  He confirmed to the Tribunal that the only reason for ceasing work at that time was the closing down of ACI.  In cross examination, he stated that he was given a redundancy package comprising compensation and superannuation payments totalling about $140,000.
The Applicant further stated that he looked for work, without success, for the ensuing two to three years.  He stated that he was prepared to accept any work, but none was forthcoming.  He ceased looking for work because, in his words, he suffered a non-curable disc problem giving him back and leg pains and also because of problems with the muscles in his right hand.
On 8 November 1999, the Applicant lodged a claim for a disability support pension. From the T documents and as confirmed in cross-examination, he had not sought or received any benefits during the intervening eight years following the cessation of work. He indicated that he was independently able to support himself and his wife during that period, his children being grown up and independent. Accompanying his claim was a Treating Doctor's Report prepared by his general practitioner, Dr Ghalib Hamad (T5). This report diagnosed his medical conditions as chronic lower back pain, hypertension, bilateral cataract implants, calcaneal spurs and left knee pain, and thalassaemia minor. Dr Hamad saw all these conditions as long term, and assessed the Applicant as being "unlikely to go to work" or "unfit for work".

1. On 22 November 1999, Dr T Kanapathipillai of Health Services Australia undertook a medical assessment of the Applicant for Centrelink (T10). He confirmed his medical conditions as chronic recurrent back pain, controlled hypertension, bilateral cataract (operated on in 1995), bilateral heel and left knee pain and thalassaemia minor. He assessed a functional impairment of 10% from the impairment tables at Schedule 1B of the Act, the 10% being related to bilateral heel and left knee pain.

2. In a later report dated 27 June 2000 (Exhibit A2), Dr Hamad comments on the Applicant's health problems as follows:

   "1)impaired hearing due to sensorineural damage produced by noisy surroundings at his work place since 1985;

   2)   hypertension and left ventricular hypertrophy and hyperlipidaemia since October 1985;

   3)   painful heels due to bilateral calcaneal spurs which have required steroid and local anaesthetic and local infiltration since 1989 and painful left forefoot due to a fracture of the 3rd metatarsal bone;

   4)   chronic low back pain secondary to some loss of bone density; some rotational scoliosis of the lumbar spine and spondylolisthesis of L4/5 level with narrowing of the disc space changes as well as arthritic changes in 1992;

   5)   mid and upper back pain secondary to degenerative spinal disease since 1995;

   6)   painful 1st carpometacarpal joint of the right thumb since 1994;

   7)   bilateral nuclear cataracts that required surgery and the insertion of intraocular lenses in 1995;

   8)   thalassaemia minor and hypercholestrolemia; and

   9)   amputation of the right little finger at its proximal inter-phalangeal joint."'

Dr Hamad considers it "virtually impossible for him to engage in any sort of gainful duties" due to his age, health status, lack of skill, poor command of English and chronic pain.

1. In a subsequent report dated 15 September 2000 (Exhibit A1), Dr Hamad broadly recounted the above medical conditions, referred to intermittent episodes of severe low back pain, and concluded that the Applicant "is totally permanently incapacitated", and "unfit for any type of gainful work".  Dr Hamad made no recommendations as to impairment ratings. 

2. The Applicant described a typical daily routine as breakfast, then driving his wife to Bankstown for an hour's shopping, lunch at home, then remain there or perhaps visit friends.  He does not go out on his own, but can drive for short periods.  He does some household chores, less so than in the past due to pain, and has no requirement to undertake maintenance or gardening at his home.  He watches television, and usually wears glasses to do so and to read.  In cross-examination, he was questioned in respect of the implications of his medical conditions.  In response he also referred to conditions that are not related to the claim, and have not been assessed by the Respondent.  However for completeness such responses at included in the following summary:
   Back/Knee:   He takes medication once daily for knee pain to help him sleep, and once daily for his back pain.  He has knee massage twice a week, which temporarily relieves his knee pain.  He describes his pain as periodic and real;  when not in pain he can undertake limited household activities, but they introduce pain and soreness, particularly in the right hand and shoulders.  His children clean the house at weekends, as his wife suffers from arthritis.  Reports of an x-ray of the lumbar spine in 1992 (T6) and medical imaging reports of the cervical spine in 1996 (T7) were available to the Tribunal as were two reports on the right knee (T8 and Exhibit A3) and one on the left knee (T9), these reporting degenerative changes.  The Applicant has not been referred to an orthopaedic specialist;  he saw no point in doing so, his problems being "incurable".
   Hypertension:          The Applicant takes medication which he considers keeps hypertension under control.  He stated he suffered from dizziness should he not take his medication, and further that he "would probably die in a week" without it.
   Bilateral Cataract Implants            The Applicant cannot drive after dark, but otherwise there are no problems.
   Thalassaemia minor           The Applicant described his symptoms as nervousness and "body not normal".  He feels tired at times but does not sleep during the day.  He becomes sore in the neck when hanging up clothes.  He receives no treatment for this condition.

3. When asked which condition gave him the most difficulty or pain, the Applicant said "everything, whatever I do I feel pain – including walking and  sweeping".  At times the pain was in "all the body" and "all the time".
   ANALYSIS OF EVIDENCE AND FINDINGS 

4. The Respondent contended that pursuant to section 100(3) of the Act, the relevant period under consideration is the three month period following lodgement of the claim (Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996), that is from 8 November 1999 to 8 February 2000.  That being the case, the Respondent argued that additional medical conditions subsequently raised in the reports by Dr Hamad were not relevant to this matter; they were not subject to a formal claim and had not been assessed nor rated for possible impairment.  The Tribunal accords with this view, and accordingly considers only those medical conditions raised in the claim lodged on 8 November 1999, as then medically assessed by Dr Kanapathipillai for Centrelink.

5. The Respondent conceded that the Applicant has medical impairments and so satisfies subsection 94(1)(a) of the Act, but the total impairment rating should remain as assessed by Dr Kanapathipillai, which was affirmed both on review and by the SSAT, as less than 20 points. Accordingly the Applicant could not meet subsection 94(1)(b) of the Act, and would not be eligible for the disability support pension, irrespective of whether or not he meets the "inability to work" criteria as defined in subsections 94(1)(c) and 94(2).

6. The Applicant had nothing further to add by way of final submission, stating that he had "told the Tribunal everything". The Respondent provided a written final submission addressing each of the Applicant's conditions. The conclusions drawn by the Tribunal in respect of the appropriate impairment ratings pursuant to the impairment tables at Schedule 1B of the Act are as follows:
   Chronic Lower Back Pain:  Described by Dr Hamad as "characterised by intermittent episodes of severe low back pain that develop suddenly with no identifiable precipitant", and by the Applicant as "a real pain, occurring all the time" and occurring on prolonged sitting and standing.  It prevents him from working and undertaking various activities.  As noted on examination by the Respondent's doctor (T10), there is some loss of bone density and arthritic change, but a normal range of movement.  An impairment rating of zero under Table 5.2 was accorded, and on the evidence available, noting that there are no specialist reports nor an impairment assessment by the treating doctor, the Tribunal agrees with an assessment of zero.
   Hypertension            Dr Hamad describes the clinical features (in conjunction with bilateral contacts) as "develops headaches and easy fatigue" (T5).  He contends that "hypertension (and other conditions) compound his back complaints and significantly restrict his ability for any work" (Exhibit A1).  The Health Services Australia medical examiner notes that with medication (Renitec) blood pressure is good, and assesses an impairment rating of zero under Table 20.  The Applicant stated that hypertension was under control with medication.  The Tribunal sees no reason to change the impairment rating of zero.
   Bilateral Cataract Implants:           The comment by Dr Hamad at T5 is relevant, but does not define whether "headaches and easy fatigue" is, in his view, related to hypertension or this condition.  The Health Services Australia medical examiner considers that the Applicant's vision is satisfactory, and accords a rating of zero against Table 13.  The Applicant gave evidence that apart from not driving at night, he had no problems.  The Tribunal has no evidence that would justify an impairment rating other than zero.
   Thalassaemia Minor:          Dr Hamad describes the implications of this condition as "easy fatigue and undue tiredness" (T5).  Dr Kanapathipillai, on examination, states that the condition is "not clinically anaemic and no functional limitation".  The Applicant described the effects of this condition as nervousness and "body not normal" and that he felt tired at times.  He does not sleep during the day, and requires no medication.  In the absence of evidence pointing to any impairment, the Tribunal agrees with the presently assessed impairment rating, under Table 20, of zero
   Calcaneal spurs and left knee pain:        The Health Services Australia medical examiner justified an impairment rating  against Table 4 of 10 points, based on a history of painful heels and left knee, difficulties in walking and standing for long periods, although describing general mobility as being "without discomfort".  Both the SSAT and the Respondent concur with that rating.  On the evidence presented by the Applicant, the Tribunal is also in accord with this impairment rating.

7. The Tribunal therefore assesses the combined impairment rating as 10 points. The Applicant does not meet the criteria of 20 impairment points as required by section 94(1)(b) and therefore is ineligible for the disability support pension.

8. The matter as to whether the Applicant has a continuing inability to work, pursuant to section 94 (1)(c) does not therefore arise. However, as the Respondent addressed this issue in the written final submission, a summary of relevant issues is included for completeness. The Respondent stated that amendments to section 94 of the Act were introduced with effect from 29 September 1995, the substitution of new subsections 94(2) and (3) being made in an attempt to "clarify the meaning of work" and ensure that a person only has a continuing inability to work where the inability to work results directly from the person's physical, intellectual or psychiatric impairment that has been assessed at 20 points or more under paragraph 94(1)(b) and not from factors that are consequential upon the impairments, such as "lack of motivation to work" (explanatory memorandum at page 11 to the Social Security Legislation Amendment Act (No1) 1995).  Thus, non medical issues such as age and language skills (as emphasised by Dr Hamad at Exhibit A2), are excluded.  Whilst the Health Services Australia medical examiner considered that the Applicant could undertake light work for 30 hours a week, a conclusion which was not agreed to by the authorised review officer (T15), the Tribunal has not considered the question of "continuing inability to work" for the reasons given above.

9. The decision under review is affirmed.    

I certify that the 21 preceding paragraphs are a true copy of
the reasons for the decision herein of:

Rear Admiral A R Horton AO, Member

Signed:         .....................................................................................
  Associate

Dates of Hearing  1 December 2000
           Date of Decision  December 2000
           Solicitor for Applicant  Self represented
           Solicitor for the Respondent        Ms C Collis