Li and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1606

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1606

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/694

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHUMIN LI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal MS N BELL, Senior Member

Date31 July 2007  

PlaceSydney

Decisions

1. In respect of the decision to reject Ms Li’s claim for disability support pension, the decision is set aside and instead the Tribunal decides that Ms Li satisfies the requirements of sections 94(1) (a), (b) and (c) of the Social Security Act 1991 and has done so since the date of her claim.

2.      In respect of the decision to not exempt Ms Li from the operation of the newstart allowance activity test, the Tribunal affirms the decision.

..................[Sgd].......................

Ms N Bell
  Senior Member  

SOCIAL SECURITY – Disability Support Pension – Newstart Allowance – Continuing Inability to Work – Normal Workplace – Not a Benign Employer – Can Unrated Impairments be Taken into Account – Impairment is not Confined, Defined or Restricted in Legislation – Unrated Impairments Can be Taken into Consideration – The Decision is Set Aside.

Social Security Act 1991

Re Panke and Director-General of Social Services (1981) 4 ALD 179

Hamal and Secretary, Department of Social Security (1993) 30 ALD 517

Triantafillou and Secretary, Department of Family and Community Services (2003) 73 ALD568  

REASONS FOR DECISION

MS N BELL, Senior Member        

1.On May 15 2001 Ms Li was injured when she was struck by a car. She lost consciousness and was admitted to hospital for three days. Ms Li has since complained of back, knee and neck pain, psychiatric symptoms and cognitive impairment. Ms Li seeks review of two decisions by Centrelink; first a decision to reject her claim on 12 September 2005 for disability support pension and, second, a decision to refuse to exempt her from the activity test for newstart allowance.

issues

2.Qualification for disability support pension is provided for, in the main, by section 94(1) of the Social Security Act 1991. Three things are required:

i)a physical, psychiatric or intellectual impairment;

ii)a rating of 20 points or more under the Impairment Tables in Schedule 1B to the Act; and

iii)a continuing inability to work.

3.There is no dispute that Ms Li suffers from physical, psychiatric and cognitive impairments.  There is also no dispute that Ms Li has at least 20 points under the Impairment Tables, having been assessed by a rehabilitation consultant contracted by the Respondent. She was assessed as having 10 points for a loss of quarter range of movement of her back and 10 points for a loss of half range of movement of her neck.

4.The only issue that remains is whether Ms Li has a continuing inability to work because of an impairment. To determine this issue, I must consider whether, in accordance with section 94(2) of the Act:

(a)  the impairment is of itself sufficient to prevent her from doing any work within the next two years; and

(b)  either:

i)the impairment is of itself sufficient to prevent Ms Li from undertaking educational or vocational training or on the job training during the next two years; or

ii)if the impairment does not prevent Ms Li from undertaking educational or vocational training or on the job training during the next two years, such training is unlikely, because of the impairment, to enable her to do any work within the next two years.

5.One issue that arose for consideration in the context of this issue is whether Ms Li’s cognitive and psychiatric impairments, on which a number of doctors have reported but which have not been the subject of an assessment under the Impairment Tables, can be taken into account in considering whether Ms Li has a continuing inability to work.

6.I will consider, first, the effect of Ms Li’s rated physical impairments on her inability to work.  Then, I will turn to the question of whether I may assess her inability to work by reference to her as yet unrated psychiatric and cognitive impairments.  If I decide I may take those impairments into account, then I will consider their effect on her continuing inability to work.

effect of physical impairments

7.It was not disputed by rehabilitation assessor, Ms McGrath, social worker, that at the time of the assessment the effect of Ms Li’s impairments was that she could not work. Given the terms of section 94(2) of the Act, I must then consider whether Ms Li’s physical impairments would prevent her from training or prevent any training from enabling her to work.

8.Dr Davis, Occupational Physician, examined Ms Li on 8 September 2005 and again on 31 October 2006. In 2005 Dr Davis found that Ms Li experienced difficulty with any task that required her head to remain in a fixed position, including activities such as reading or writing. She also experienced continuing pain in her cervical and upper thoracic regions as well as lower thoracic and lumbar pain. This was accompanied by associated headaches and episodes of dizziness as well as pain radiating from her cervical region to both shoulders. In 2006 Dr Davis stated that Ms Li is unable to undertake activities that involve long periods of standing or sitting.  Dr Davis concluded that Ms Li’s very poor English skills mean that she would be limited to performing unskilled work and her physical limitations would make such work too demanding for her.   He considered that Ms Li could not undertake any work which would involve any heavy lifting, forceful pushing, prolonged standing or sitting, prolonged travel, repetitive climbing of stairs, maintained or repetitive squatting, repetitive or sustained flexion or semi flexion or activities involving reaching or working above shoulder height.

9.In oral evidence Dr Davis repeated that Ms Li is limited by her lack of English skills. He said she would not be able to undergo intensive English language training because her physical limitations would prevent her from sitting for any length of time.  I also note his opinion, expressed in his 2005 report, that Ms Li’s difficulty with holding her head in a fixed position means she has difficulty with reading or writing.

10.Much was made of the fact that Ms Li had worked for some time in a fast food shop owned with her husband.  Ms Li’s evidence was that she would generally work only a short day at the shop after being driven to work by her husband at 7.30 am, leaving by 2.30 pm and being driven home by one of her two assistants.  Even so, while at work she would experience pain in her leg, back, neck and have headaches and dizziness.  She said she was unable to make sandwiches, chop or cut because she could not stand or use her hands for long and the pain at the back of her neck was too much for her to bear.  She said the longest she could stand was for 30 minutes and the longest she could sit was for one hour.  Whilst at the shop she would work for an hour to an hour and a half and then have a half hour rest.   She had an armchair at the shop that she would sit in regularly and a sofa in the back of the shop where she would lie down everyday.  She said as soon as she got home she would go to bed and sleep.

11.This evidence is consistent with the history Ms Li gave to Carole Young, physiotherapist, who completed a Home and Living Skills Report on 22 December 2004.  I accept Ms Li’s evidence.  I also accept her evidence as to the very little she does in the way of housekeeping and food preparation in the home she now shares with her young adult son.  I note that Ms Li’s husband has returned to China.

12.Any consideration of whether Ms Li’s physical impairments prevent work or training, or prevent such training from enabling her to work must be undertaken in the context of the normal workplace. In Re Panke and Director-General of Social Services (1981)[1] the Administrative Appeals Tribunal stated that:

an ability to engage in remunerative employment involves an ability to attract an employer who is prepared to engage and to remunerate the disabled person. 

[1][1] 4 ALD 179

13.The Tribunal in that case noted there are cases where a person would be physically able to do the work provided that they find a sympathetic employer. However it would be unlikely to find such an employer who would remunerate the person for the limited type of work that they can physically do, especially taking into account the risks associated with a disabled employee including the increased risk of worker’s compensation and sick leave claims.

14.In Hamal and Secretary, Department of Social Security (1993)[2] the Tribunal found that a person’s abilities are to be judged against the “normal” workplace, not the workplace of the “benign employer”. In applying the decision in Hamal the Administrative Appeals Tribunal found in Triantafillou and Secretary, Department of Family and Community Services (2002)[3] that this means that “work” is:

Work that is carried out in the complex entity that is the “open workplace” and not work that is insulated from the dynamic and unpredictable demands of this entity.

[2] 30 ALD 517

[3] 73 ALD 568

15.It is clear that Ms Li’s physical limitations require extensive accommodations to be made for her in the workplace.  I am not satisfied that such accommodations would be available to her in the “normal”, as opposed to the “benign” workplace.   Nor am I satisfied that such accommodations would be available to her in a training environment.  In any event, her difficulty with reading and writing, arising out of her neck pain and limitations on holding her head in a fixed position would prevent her from undertaking English language studies that would equip her for skilled work in two years.  I am therefore satisfied that, on the basis of her physical limitations alone, Ms Li has a continuing inability to work.

16.I therefore set aside the decision to reject Ms Li’s claim for disability support pension and instead decide that she satisfies the requirements of sections 94 (1) (a), (b) and (c) of the Social Security Act 1991 and has done so since the date of her claim.

can unrated impairments be taken into account?

17.It is not strictly necessary for me to consider this matter further, given my conclusion that Ms Li has a continuing inability to work, solely on the basis of her rated physical impairments.  However, her cognitive and psychiatric impairments are significant and they deserve attention in the event that I am wrong on the question of the effect of her physical impairments on her ability to work.

18.Ms Li’s cognitive and psychiatric impairments have not been assessed and rated under the Impairment Tables for the purposes of section 94(1)(b). The Secretary contends that these unrated impairments cannot be considered when determining whether Ms Li has a continuing inability to work or train for the purpose of section 94.

19.Mr Bullock for the Secretary submitted that the fact that Ms Li has some cognitive and psychiatric impairments that have not been fully diagnosed, treated and stabilised blurs the impact of her other impairments on her ability to work, or to be rehabilitated and retrained.  Mr Bullock submitted that recent case law (not cited by him) has found some of a person’s circumstances may be taken into account when considering their ability to work, but that is usually in cases where, for example, a person has suffered depression as a result of a physical impairment.  However, he said, here Ms Li’s psychological impairments appear to be the result of a completely separate impairment – her head injury.  Mr Bullock submitted that Ms Li’s cognitive and psychological impairments should not be taken into account when considering whether she has a continuing inability to work.

20.Ms Sant, for Ms Li, submitted to the contrary and pointed out that nowhere in section 94 or anywhere else in the Social Security Act 1991 is the word “impairment” confined, defined or restricted in any way and so the word bears its ordinary meaning. She submitted that the question of permanence of an impairment is relevant, by virtue of the introduction to the Impairment Tables, only to the issue of whether it can be rated under those Tables and, therefore, relevant only to the exercise governed by section 94(1)(b). If the impairment is caused by a temporary condition it cannot be rated. That does not mean that it does not count as an impairment for the general purposes of section 94. The impairment will still be relevant to the question of whether a person satisfies section 94(1)(a) and (c) and section 94(2).

21.In any event, according to Ms Sant, there is no requirement in the introduction to the Tables that the impairment itself be permanent. The requirement is that the underlying condition be permanent. The fact that a condition has to be permanent for the purposes of s 94(1)(b) cannot be the basis for asserting that an impairment must be permanent for the purposes of a different part of the Act.

22.In section 94(2) the indefinite article is used to refer initially to “an impairment” rather than to “the impairment”. Ms Sant submitted that the choice, by Parliament of the indefinite rather than the definite article makes it clear that the subject of the provision is any impairment. In addition, the Introduction to the Impairment Tables would have no work to do if “impairment” were taken to refer only to permanent impairments in the same sense wherever the word occurs in section 94.

23.I am satisfied that the view advanced by Ms Sant is the correct approach to the question. It follows that I may take into account impairments that have not been rated for the purpose of section 94(1)(b) in my consideration of whether Ms Li has a continuing inability to work.

effect of psychiatric and cognitive impairments

24.A report by neuropsychologists, Ms Sue Meares and Mr Anthony Miller of the Westmead Hospital, in 2001 and a report by Dr Morse, psychiatrist, in 2002 reported Ms Li’s cognitive impairment including impaired ability to learn new things, poor memory and impaired concentration together with lack of motivation directly caused by her brain injury and depression.

25.In 2004 Dr Bleasel, neurosurgeon, reported that Ms Li had suffered a concussive brain injury and has post traumatic headaches, together with impairment of concentration and memory and irritability and depression.  He said her prognosis was not good given the time that had already passed since the accident.

26.Dr Morse, in relation to Ms Li’s psychiatric condition, reported Ms Li’s anger, fearfulness, intolerance of crowds and noise and her irritability.  He made diagnoses of personality change and depressive disorder due to brain damage secondary to head injury with adjustment disorder.  He said Ms Li’s prognosis was very poor and that there was little likelihood of improvement in someone suffering from brain damage after a year.

27.Dr Davis reported in 2006 that Ms Li had sustained a mild to moderate traumatic brain injury with continuing cognitive impairments and associated difficulties in relationships, and accompanying development of social isolation which represents a considerable psychological response to her injury.  He said her English communications skills are quite poor and that, in combination with her physical and psychological conditions would prevent her from doing any work for at least 30 hours per week within the next two years.   He said Ms Li’s cognitive difficulties would preclude her from upgrading her English language skills and the overall effect of her medical conditions would therefore prevent her from undertaking any educational or vocational training, or on-the-job training within the next two years.

28.In oral evidence, Dr Davis said of suggestions for treatment for Ms Li, including cognitive behavioural therapy, that “in the real world”, six years after the injury, nothing about Ms Li’s condition will change now.  He also said, of Ms Li’s attempt to work in the fast food shop, that it was clearly not a success and was motivated by her desire to pull her own weight.  This motivation was lost following her increasing loss of interest and social withdrawal.  He said that mood disorder and lack of motivation can be caused by cognitive impairment.

29.I note that Mr Robilliard, physiotherapist, who did not actually see Ms Li, provided an assessment in which he considered that Ms Li could, currently, work for 30 hours per week.  Mr Robilliard appears not to have taken Ms Li’s psychiatric or cognitive impairments into account.  I also note that the rather vaguely described programs recommended for Ms Li by Mr Robilliard in his assessment have not been instituted.

30.I also note the report of Mr Banks, psychologist which expresses some optimism as to the ability of Ms Li to work, provided her severe levels of depression and “other pain and anxiety related symptomatology” is addressed.  This report was relied on by Mr Bullock.

31.I consider that neither the opinions expressed by Mr Robilliard, a physiotherapist, or Mr Banks, a psychologist, sufficiently address the full reported extent of Ms Li’s cognitive and psychiatric impairments.  I prefer the evidence of the specialist medical practitioners to that of Messrs Robilliard and Banks.

32.I am satisfied that Ms Li’s cognitive and psychiatric impairments contribute to and underline, in the manner described by the above specialist medical practitioners, her inability to work for 30 hours per week and her inability to successfully undertake training to equip her to do such work.  Further, I am satisfied that these impairments would exacerbate her inability to perform work for 30 hours per week even if she was to be successfully retrained.

exemption from newstart allowance activity test

33.Mrs Li’s physical and, possibly, other impairments are not temporary.  Therefore, the exemption from the newstart allowance activity test is not available to her.  I therefore affirm the decision to not exempt Ms Li from the operation of the newstart allowance activity test.  In practical terms, however, this decision has no effect given my conclusion as to Ms Li’s qualification for disability support pension.

decisions

34.In respect of the decision to reject Ms Li’s claim for disability support pension, the decision is set aside and instead the Tribunal decides that Ms Li satisfies the requirements of sections 94 (1) (a), (b) and (c) of the Social Security Act 1991 and has done so since the date of her claim.

35.In respect of the decision to not exempt Ms Li from the operation of the newstart allowance activity test, the Tribunal affirms the decision.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member

Signed:         ................[ Sanjiv Shah ]......................
  Associate

Date of Hearing  7 May 2007
Date of Decision  31 July 2007

Counsel for the Applicant         Dr K Sant
Solicitor for the Applicant          Mr Hazard

Solicitor for the Respondent     Mr Bullock