Naziry and Secretary, Department of Family and Community Services

[2001] AATA 1028

DECISION AND REASONS FOR DECISION [2001] AATA 1028

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/201

GENERAL ADMINISTRATIVE   DIVISION     )          
           Re      OBAIDULLA NAZIRY       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member  

Date17 December 2001 

PlaceSydney

Decision      The decision under review is affirmed.            
  Rear Admiral A R Horton AO
  Member 
CATCHWORDS
SOCIAL SECURITY – claim for disability support pension – Applicant fractured right leg at age 17 – arthroscopy to right knee carried out 1994 – further arthroscopy in 1997 resulting from work related injury – third arthroscopy carried out 1998 - Applicant ceased work in 1999 due to right knee condition - whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 points or more vide Schedule 1B – whether Applicant has continuing inability to work – whether impairment is sufficient to prevent educational, vocational or 'on the job' training  

Social Security Act 1991 – subsections 94(1), (2), (3), (4), (5)
Social Security (Administration) Act 1999 – Schedule 2
Social Security Legislation Amendment Act (No 1) 1995

Re Secretary, Department of Social Security v Cooper (1990)19 ALD 1
Re Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 

REASONS FOR DECISION

Rear Admiral A R Horton AO, Member                    

1. This is an application for review of a decision by the Social Security Appeals Tribunal ("the SSAT") on 5 December 2000 that affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") on 31 August 2000 that Obaidulla Naziry ("the Applicant") was not eligible for disability support pension ("DSP").   

2. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 16 February 2001.  At the hearing before the Tribunal on 15 November 2001, the Applicant was represented by Ms Cvetanka Jankulovska, solicitor, of the NSW Legal Aid Commission.  Mr George Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink, appeared for the Respondent.

3. 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 documentation:

A1      Report from Dr M Burns, Occupational Physician        13 June 2001           
A2      Supplementary report by Dr Burns          25 July 2001
A3      Second supplementary report by Dr Burns       5 September 2001  
R1      Report by Joanne Hodgetts, Senior Rehabilitation Consultant, CRS Australia       19 July 2001  
R2      Report by Dr J Ying, HSA Australia         15 August 2001       

1. The Applicant and Dr Burns gave oral evidence to the Tribunal.   An interpreter fluent in the Persian language was present to assist the Applicant, but was rarely called upon as the Applicant had a good understanding of the spoken English language.  
   issues before the tribunal

2. The Applicant lodged a claim in respect of 'right knee injury at work' on 26 July 2000.  The accompanying Treating Doctor's Report ("TDR") completed by his general practitioner, Dr A S Gill on 26 July 2000 (T7), diagnosed right knee osteoarthritis.   Dr Gill noted the condition was long term, constant and deteriorating, and assessed that the Applicant was not likely to return to any work for at least 8 hours per week or more for at least two years, and that he would not benefit from vocational training or rehabilitation.

3. On 24 August 2000, Dr G Marion of Health Care Australia ("HSA") examined the Applicant on behalf of the Respondent, the report being at T9. Dr Marion had available a specialist report by Dr D Biggs, orthopaedic surgeon, dated 27 July 2000 (T8) and a report on a CT scan by Dr A Lee of Ultrascan Radiology dated 8 February 1999 (T5). Dr Marion agreed the diagnosis of right knee osteoarthritis, noting the clinical features of chronic pain, swelling and stiffness, and assessed the condition as permanent, with an impairment rating of 10 points under table 4 of Schedule 1B of the Social Security Act 1991("the Act").  Dr Marion considered the Applicant "fit for light to moderate work, preferably a sedentary work".

4. On 31 August 2000, the Respondent rejected the claim for disability support pension, assessing the impairment rating pursuant to subsection 94(1)(b) of the Act at 10 points, and considering the Applicant 'fit for light to moderate full time work'.  This decision was confirmed by review on 13 September 2000, and affirmed by an Authorised Review Officer on 19 October 2000. On 5 December 2000, the SSAT accepted that the Applicant satisfied subsections 94(1)(a) and 94(1)(b) of the Act in that he had a physical impairment and an impairment rating of 20 points respectively, but did not accept that he satisfied the requirements of subsection 94(1)(c) in that he did not have a continuing inability to work.
   Legislation

5. The Respondent concedes that at the date of the claim or within a period of thirteen weeks thereafter pursuant to Schedule 2 of the Social Security(Administration) Act 1999, the Applicant met the criteria in subsections 94(1)(a) and 94(1)(b) in respect of a permanent impairment of 20 points or more under the Tables in Schedule 1B of the Act. The issue before the Tribunal is whether the Applicant meets the conditions in subsection 94(1)(c) of the Act, that is, whether he had a continuing inability to work as defined.

6. Section 94 of the Act states, relevantly:

   "94 Qualification for disability support pension

   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;
   …

   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 two 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(5 )  In this section:

   educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
   on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments. 

   work means work:

   (a) that is for at least 30 hours per week at award wages or above; and  
   (b) that exists in Australia, even if not within the person's locally accessible labour market."   

7. Schedule 2 of the Social Security (Administration) Act 1999 relevantly states:

   "4 Start day—early claim

   (1)  If:

   (a)       a person (other then a detained person) makes a claim for a relevant social security payment; and

   (b)       the person is not, on the day on which the claim was made, qualified for the payment; and

   (c)      assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

   (d)       the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment."

8. Impairment is assessed against the Tables for the assessment of work-related impairment for disability support pension ("the Impairment Tables") in Schedule 1B of the Act. The introduction to the Impairment Tables states, relevantly:

   "1.       …The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense.   For this reason, no specific adjustments are made for age and gender.  ...

   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. …   

   4.        A rating is only to be assigned after a comprehensive history and examination.  For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. … 

   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…"

applicant's evidence and facts

1. The Applicant was born in Afghanistan in 1954.   On leaving school, he qualified as a primary school teacher, and taught accordingly for about 18 months.  Because of the internal unrest in Afghanistan, he migrated to Pakistan in 1981 and then to Australia in 1984.   He gave evidence that he undertook various English courses over the next two years, but these were often disrupted due to family commitments.   Whilst his spoken English is, in the view of the Tribunal, quite good, he gave evidence that his ability to read and write in English was "not much, very poor".   He considered that because of the type of employment in which he had been engaged, the need to have reading and writing skills was not important.  

2. The Applicant has five children, three of whom live in the family home.  His work history in Australia commenced with five years employment as a labourer in a duplication centre.   In 1991 he took up employment with Alcan as a machine operator, returning to the duplication centre in 1992 when Alcan downsized, remaining there for three years.   He started work with Skanson Giftware as a labourer/storeman packer in 1994, eventually becoming a supervisor in the packing section.  

3. The Applicant gave evidence that when aged 17, his right leg was broken in a bus accident.   This injury took some months to heal, the femur being pinned and the nail remaining in place for some years (Dr Burns at Exhibit A1).   The Applicant stated that thereafter the leg gave no problem until he experienced pain in the knee in 1994, and an arthroscopy was carried out by Dr Bruce, orthopaedic surgeon.  

4. In late 1997, the Applicant suffered a work related injury to the right knee, being "hit hard over the anterior aspect of the right knee by a pallet" (Central West Orthopaedics at T8); he stated that the matter of compensation was still before the courts.   To assist him in his return to work, he was referred to the Commonwealth Rehabilitation Service ("CRS") by Dr Gill in January 1998.   The report by CRS at Exhibit R1 states that following evaluation and assessment, the Applicant returned to work on suitable duties;  he gave evidence that he found work difficult, that he suffered pain and could not walk properly to undertake tasks in the large warehouse.   CRS involvement ceased in August 1998, when a further arthroscopy was carried out.

5. After this surgical intervention, he was again referred to CRS in October 1998 (by FAI, the Workers Compensation Insurer).   CRS reports that he was unable to reach full time hours due to ongoing knee pain and a third arthroscopy was carried out in March 1999.   The Applicant gave evidence that following this intervention, he could not drive due to pain in the leg when operating controls, and CRS records that for that reason, he was certified unfit for work.   The Applicant ceased work in December 1999, and stated to the Tribunal that he would "love to be able to continue work" but his medical condition was such that this was impossible.  He further stated that Dr Gill said "you cannot do any work and you cannot drive".  

6. In May 2000, CRS considered the Applicant could be employed in a desk-based position or in a customer service role.  The CRS report notes that the treating practitioner (Dr Gill) agreed it was appropriate for the Applicant to look for alternate employment in line with his restrictions.   Rehabilitation intervention ceased in August 2000 at the direction of the Insurer.  

7. In cross examination, the Applicant confirmed that he had stopped work on the advice of his general practitioner. He described his condition as having continuous pain with tightness in the right knee, which affects him in 'everything' he does.   Medication merely reduces the level of pain.   He takes six to eight Panadeine Forte daily and Feldene, as well as one Zintac tablet each day to prevent infection, for which he has been hospitalised in the past, and required home nursing.  Panadeine makes him dizzy, which effects his ability to drive – although he drives short distances to the shops and hydrotherapy pool – and his ability to make the right decisions.  At times he uses a walking stick, but is self conscious at being seen with it.  

8. He described his home life as having disturbed nights, and often being unable to sleep.  He takes some ten to twenty minutes to place his foot on the floor when rising.  He occupies himself during the day by watching television, but has no work tasks.  He stated that as he cannot bend or squat - 'what can I do'.   His family visit;  he is on casual terms with his neighbours.  His wife used to work, but has ceased in order to look after him and the children.   He has no garden and cannot mow the lawn.  He rarely uses public transport.   He swims and this helps.  He accompanies his wife shopping, but cannot push a trolley or carry bags.  He can look after himself, but said that he 'had to be careful'.  

9. In cross examination, the Applicant stated that he could not do light physical work, but would undertake suitable light duties were it not for his inability to travel to work.  Such work would need to be within five to ten minutes of his home.   He felt that to undertake full time work would be very hard, given the constant pain. His ability to undertake such work would be further reduced by lack of sleep, and difficulties of moving upon rising in the morning.  He nonetheless professed a keenness to obtain work.    

10. The Applicant expressed an interest in obtaining new skills, and stated that he had no objection to participating in training, but variously stated that attending classes was not an option; he did not consider he could study; and he would be unable to concentrate given his pain levels and the effects of medication.   In cross- examination, he questioned the need to consider a new career at this stage of his life.   In considering the rehabilitation efforts by CRS, he considered that organisation correctly assessed that he could not do his usual fork lift driver/supervisor work, and that contrary to the comment by CRS that intervention was discontinued at the direction of the insurer, CRS itself had made the decision that further assistance would be to no avail, and hence they had closed the case. 
    Medical Evidence

11. The report by Dr Gill accompanying the claim and the assessment by Dr Marion for HSA have been addressed at paragraphs 5 and 6 respectively.   A CT scan by Dr A Lee of Ultrascan Radiology, performed on 8 February 1999, concluded that there was evidence of patello-femoral osteoarthritis particularly involving the lateral compartment with evidence of mal-tracking (T5).   As noted, that report was available to Dr Marion.   So too, was that of Dr Biggs (T8) of Central West Orthopaedics dated 27 July 2000, who advised that the Applicant would require knee replacement surgery in "ten to twenty year"'. Dr Biggs assessed present and continuing disabilities as: 

"He has difficulty with any prolonged standing or any weight bearing activities on the flexed right knee, such as when having to descend hills and stairs, or when attempting to kneel or squat down.
He has pain with prolonged standing and is unable to do activities that require prolonged weight-bearing and is also unable to do any repetitive bending and lifting." 

Dr Biggs made no assessment of the Applicant's ability to perform his usual work, or other work that might take account of his medical limitations.

1. On 5 September 2000, Dr Gill stated his opinion that the Applicant is "permanently unfit for work due to pain and inability to walk.  He will remains unfit to work until a full knee replacement is performed" (T12).   This assessment is repeated at T16 and T22.

2. Dr M Burns provided three reports for the Applicant (Exhibits A1, A2 and A3).   His initial opinion on 13 June 2001 was to agree with the HSA assessment that the Applicant's medical problems do not make him "totally unfit to work"'.   However, he considered his medical conditions, including an adjustment disorder (associated with the right knee problem), his lack of education and his poor language skills, would preclude him obtaining work.   In amplification on 25 July 2001, he concluded that the Applicant could not work for 30 hours per week on award wages.  In his third report of 5 September 2001, he reaffirms his opinion that the Applicant would be unable to work for 30 hours per week on award wages for the next two years, and that retraining would not be successful until pain had been better controlled.   He disagrees with the opinions of Dr Ying, who by file review on 15 August 2001 (Exhibit R2), re-affirmed the HSA position (and SSAT decision) that the Applicant could undertake sedentary full time work and retraining. 

3. Dr Ying accepts the knee conditions and limitations as defined in the section 37 documents and by Dr Burns, as leading to an impairment rating of 20 points. Contrary to the view of Dr Burns, he considered that CRS had not reached a conclusion that the Applicant was unsuitable for vocational training or to return to suitable employment, and that non-medical issues, such as the Applicant's level of English language competency are not relevant to the assessment. He further did not consider that any evidence had been offered either by Dr Burns or in other medical reports to support the contention of the former that the conditions of cellulitis of the right calf, asthma and adjustment disorder, are significant enough to make the Applicant unfit for work.

4. Dr Ying summarised his opinion thus:

   "Despite his ongoing chronic pain in his right knee, he has significant residual abilities for sitting and for the use of his upper limbs that would allow him to work in sedentary full time duties or training.  Suitable work may include petrol station attendant, clerical duties or shop assistant, where he can have flexibility of movements and postures.   He should work where he does not have to travel far to and from work, and where he does not need to use stairs much at work"' 

5. Dr Burns gave oral evidence to the Tribunal.   He re-affirmed his opinion that the Applicant cannot meet the 30 hours work per week test.   He considered that osteoarthritis is but part of the problem, and that the chronic pain is 'leading to major disabilities' including restrictions in driving and walking, and difficulty in retaining information.   He considered that the use of panadeine, in the quantities taken, can lead to addiction and in turn, medical problems.   He gave the opinion that the Applicant does not have the skills to undertake office/clerical jobs.   Whilst he understood that the history of the Applicant was that he had returned to work on a number of occasions prior to ceasing work in late 1999, and was therefore motivated, he considered him to be clinically depressed.   He saw a deteriorating ability to return to work in the report by CRS.  

1. In cross-examination, Dr Burns stated that in his opinion, the Applicant could not undertake light or sedentary duties.   He had no office or telephone skills, and could offer no real potential.   The difficulty of the Applicant getting to and from any workplace was well accepted.   Dr Burns further considered that jobs for which the Applicant might be considered were restricted, and he considered it unlikely the Applicant, given medical and non-medical factors, would be considered for employment.   Finally, he did not believe the Applicant could cope with vocational or on-the-job training until his pain level was controlled.   In response to the Tribunal's question, he considered that pain would only be relieved following knee replacement surgery, and that was some years off, given the age of the Applicant.
   Submissions

2. Solicitor for the Applicant emphasised at the outset that the Applicant had given a genuine account of his medical condition and his circumstances.   It was also submitted that the evidence in favour of the Applicant was sufficient on the balance of probabilities.   The reliance on medication as noted in the reports by Drs Gill and Biggs was further evidence of the chronic pain suffered by the Applicant.  It was not adequately taken into account by the HSA doctors, only one of whom had physically examined the Applicant.   The advocate for the Applicant submitted that in particular, the review on the papers by Dr Ying was superficial and academic, and the defining of possible employments did not take into account the medical conditions of the Applicant.             

3. The Tribunal was referred to the Federal Court decision of O'Loughlin J in Secretary, Department of Social Security v Cooper (1990) 19 ALD 1, wherein His Honour at 6 referred to the Social Security Act as beneficial legislation, drawing on Bull v Attorney-General (NSW) (1913) 17 CLR 370 where Isaacs J said:

   "it should be construed so as to give the fullest relief which the fair meaning of its language will allow." (at 384)

4. In terms of the consideration of a 'continuing inability to work', pursuant to subsection 94(2) of the Act, the solicitor for the Applicant referred the Tribunal to a more recent Federal Court decision by Drummond J in the matter of Secretary, Department of SocialSecurity v Pusnjak (1999) 56 ALD 444. In this matter, the applicant appealed from a decision of the tribunal that found for Mr Pusnjak in respect of an impairment rating of 20 points within subsection 94(1)(b) of the Act, and a 'continuing inability to work' within subsection 94(1)(c). In dismissing the appeal, His Honour referred to the Applicant's wide interpretation of 'any work' as incorporated in subsection (a) of 94(2) in the following terms at 448:

   "But on the approach proposed by the secretary, if the expression "any work" in s94(2) means any one of the myriad occupations or activities that can, in the abstract, be accepted as falling within the ambit of that phrase and if the expression "of itself" prevents the decision-maker from taking into account any of the personal circumstances of the particular pension claimant in considering whether he meets the requirements of s.94(2)(a) and (b), it is plain that the disability support pension would only be available to a handful of the most severely disabled people.   I would expect there to be many tens of thousands of people, each significantly less disabled than that but each of whom is accepted by the secretary as fully entitled to the disability support pension they are now receiving.   The secretary did not, however, shy away from this draconian interpretation of the provision'.   

5. The solicitor for the Applicant further referred the Tribunal to Re Pusnjak (supra), where His Honour went on to state: 

   "But s94(2) involves no departure from the intent of the 1991 version of the section:   the necessary limited range of work activities for which the particular claimant is fitted by his actual skills and experience is not to be ignored, in determining his eligibility for this pension."

6. The Tribunal was further referred to pp 452-453, wherein His Honour postulated that the Court was entitled to clarify the literal meaning of a statutory provision where it concludes it does not conform to the legislative purpose and the advocate for the Applicant submitted that the implication in this paragraph was that the legislation was not intended to deny eligibility.   It was further submitted that His Honours conclusion at  453 paragraph 36, was apposite to this matter: 

   "…the applicant has failed to demonstrate any error of law on the part of the tribunal in taking into account Mr Pusnjak's actual work skills and experience and capacity to be retrained for any work that he could thereafter do …"

7. The Respondent submitted that pursuant to the relevant issue under subsection 94(1)(c), as further defined in subsection 94(2) of the Act, the Applicant was capable of light work and retraining. The Respondent relied on the reports of HSA doctors Marion, Yu and Ying.

8. The Respondent referred the Tribunal to the initial report by Dr Burns (Exhibit A1, p5) wherein he stated that based on medical problems alone, it would be possible for the Applicant to consider returning to 'sedentary duties'. He submitted that it was not appropriate to take into account as Drs Burns and Gill have done, non-medical factors such as language skills and the availability of work in the area, but that pursuant to subsection 94(2), the impairment of itself needed to be sufficient to justify a continuing inability to work or undertake educational or vocational training. In this matter, the Applicant was not of an age to enable him to take advantage of the ameliorating provisions of subsection 94(4) in regard to the likely availability of work in his local labour market.

9. He submitted that the Applicant is intellectually capable of retraining, that he had the motivation to return to the workforce vide the assessment by the CRS (Exhibit R1).   He considered the Applicant's literary skills can be improved to increase employment prospects.     In respect of Pusnjak (supra), he did not consider the conclusions in that matter to be relevant to this issue, given that Mr Pusnjak had no work skills, no English and was over 55 years of age.   In conclusion, the Respondent submitted that it would be an injustice to the Applicant were he to be given the DSP when programs to enable a return to work were available.

10. In reply, the advocate for the Applicant suggested that the submission by the Respondent that the Applicant had an interest and desire to work was not sufficient, on the balance of probabilities, to suggest that he could indeed return to the work force, given his impairment and the need to cope with life.      
    Analysis of evidence and findings

11. To summarise the views of the various medical professionals, Dr Marion of HSA assessed the Applicant as being 'fit for light to moderate work, preferably of a sedentary nature'.  This assessment was in part based on an impairment rating of 10 points, since raised to 20 points and hence reflecting a more severe degree of impairment.   Further, it was also based in part on the ability of the Applicant to drive and go shopping, which on the evidence placed before the Tribunal, have significant limitations.   After taking into account a further report (T12) by Dr Gill, the treating doctor, Dr Yu accords with this assessment (T13).   Finally, from the Respondent's perspective, Dr Ying of HSA, taking into account the CRS report and two reports from Dr Burns, occupational physician, agrees with a revised impairment rating of 20 points, and notes that at no stage did CRS reach a decision that the Applicant could not be rehabilitated for return to 'suitable employment'.   He also acknowledges that Dr Burns addresses other medical conditions, but on the evidence gives these little weight in respect of their impact on the Applicant's ability to work; he further questions whether the taking of 6 to 10 panadeine fortes a day precludes the Applicant from full time work.   Finally he agrees with the SSAT conclusions that the Applicant has residual capacities for work, and assesses that he could work in 'sedentary full time duties or training'.       

12. Dr Gill, treating practitioner for twelve years, maintains that the Applicant is unlikely to be able to return to any full time work for more than two years, and that he will not benefit from vocational training.   In supplementary reports he states  "he is permanently unfit for work due to pain and inability to walk.  He remains unfit to work until a full knee replacement is performed"  (T12) and again at T22 "He is awaiting knee replacement. He is permanently incapacitated from work due to pain and mobility restrictions".   The medico/legal report by Dr Biggs, orthopaedic surgeon, places limitations on the ability of the Applicant to undertake work involving prolonged weight bearing activities or repetitive bending or lifting.   He makes no assessment in respect of the Applicant's inability, or otherwise, to work full time in more sedentary occupations.   

13. Dr Burns provides the weight of medical opinion in respect of the inability of the Applicant to return to full time work, in any capacity, or to undertake vocational training.  His initial report (exhibit A1) on 13 June 2001 suggested that the medical problems (including recurrent cellulitis, adjustment disorder and asthma), "do not make him totally unfit for work", but would not allow him to be retrained.   He further considers that the applicant's limited English language skills would preclude him being able to obtain work.   Subsequent reports from Dr Burns, particularly in response to the later reports from HSA medical advisors, are more specific in concluding that the Applicant 

    "cannot work for 30 hours per week on award wages' and that retraining 'would not be successful until his pain has been better controlled"

and he has regained near normal range of movement.  

1. The Tribunal pays due regard to the opinion of the treating doctor and the assessment by Dr Burns, and further takes account of the fact that apart from Dr Marion, assessments by Drs Yu and Ying of HSA were done on the papers.  In resolving the merits of these opposing assessments, the Tribunal draws on the decision in Pusnjak (supra) wherein Drummond J addressed the approach to the issues in subsection 94(2) in the following manner:

   "(i) Having regard to the legislative history of s 94 of the Act, the question whether a person has a "continuing inability to work" within s 94(1)(c)(i) is to be approached by considering the issues framed by s 94(2)(a) and (b)(i) as follows:

   (a)       Does the impairment of itself, considered in isolation from other matters that may influence the claimant's attitude to working, so affect the claimant's capacity for work that it prevents the claimant from doing work available anywhere in Australia, being work of a kind which the claimant is, by reason of existing work skills and experience, capable of performing, without the need for retraining?
   (b)       Is the impairment of itself sufficient to prevent the claimant commencing, during the next 2 years, retraining of a kind that is available to the claimant and would fit the claimant for a class of work available in Australia that the claimant currently lacks the skills or experience to perform, even if unimpaired?

   (ii) If each of those questions is answered in the affirmative, the claimant will qualify for DSP.  If only the first question is answered in the affirmative, it will be necessary to consider the issues framed by s 94(2)(b)(ii) as follows:

   (a)       Is there available training of a kind capable of fitting the claimant within a 2 year period for work which the claimant cannot now perform, for want of the necessary skills or experience, but which the claimant could perform with that retraining?
   (b) Is it likely, taking into account only the impediment the claimant's impairment may place on the claimant's ability to complete that training within that period, that the claimant will acquire the skills or experience necessary to fit the claimant for the new class of work within 2 years?

   (ii) If each of the questions outlines in (ii) is answered in the affirmative, the claimant will not qualify for DSP.  However, if the claimant's impairment is sufficient by itself to prevent the claimant completing an available 2 year retraining course within 2 year period, the claimant will qualify for DSP."

2. The Applicant confirmed that he had qualified as a primary school teacher in Afghanistan, and had taught in that capacity for a short period.  However, his work experience, and hence skills developed in Australia, are those of a general labourer, albeit that he progressed to the role of supervisor in the packing section at Skanson Giftware.  The Tribunal is of the opinion that his supervisor skills would not be readily transferable to a non-labouring environment, and accordingly reaches the conclusion that he must satisfy the first leg of the 'Pusnjak' test, that is, his accepted impairment alone, which under the impairment tables also makes provision for the pain factor, prevents him from doing work of a kind which he is capable of performing.

3. The second leg of the test, as defined by Drummond J, is whether this impairment, of itself, is sufficient to prevent him retraining, during the next two years, for an alternate class of work.  The arguments put forward in respect of an inability to undertake vocational or educational training seem to hinge on a lack of mobility; an inability to drive more than a limited distance; the pain factor, both in respect of ability to concentrate and to perform work; effects of medication and poor language skills.   The requirement that any alternate training must relate to a more sedentary occupation than in the past has been acknowledged; the pain factor is recognised as being a component of the impairment; the effects of medication, namely panadeine forte have not been established to the satisfaction of the Tribunal preventing training or education; the limitations in reading and writing skills has not been challenged, but as the Tribunal observed, oral skills are quite reasonable, and in the past, have evidently been sufficient to place the Applicant in a supervisory role.       

4. Finally, the report on the three programs conducted by CRS Australia, refers to treatment to enable the Applicant to return to suitable duties, but in his usual work environment.   Such intervention was authorised and subsequently ceased at the direction of the Workers Compensation insurer.   The report does note (Case 3) that "it was appropriate for Mr Naziry to look for alternate employment in line with his restrictions" and "Mr Naziry would not be suited for stores work, however could consider employment in a desk-based position or in a customer service role".   The Tribunal must conclude, on the evidence, that the Applicant is not precluded from commencing a training program with a view to an alternate employment for which he presently does not have the skill or experience.  

5. Given the above conclusions, the issues in subsection 94(2)(b)(ii) must be considered. Firstly, is suitable training available? The Respondent has submitted that programs are available, although such programs have not been defined. The Applicant did not dispute the availability of such programs. Dr Ying referred to what he considered to be suitable areas of employment. Dr Burns saw these suggested areas as being unsuitable in the light of the Applicant's impairment, and the Tribunal accords with that view. Notwithstanding, there is clearly a range of sedentary occupations that might be considered suitable, within the physical and intellectual capacity of the Applicant, and for which the Applicant's oral language skills would be adequate. In that regard, the Tribunal notes the opinion of Dr Gill that the Applicant can communicate fluently in the workplace, and has a good ability to understand and follow work instructions. It follows that the Tribunal must reach the conclusion, on the balance of probabilities, that suitable new skills could be attained within 2 years.

6. In both  Cooper (supra) and  Pusnjak (supra), their Honours noted that the Act was beneficial legislation, and as highlighted by the solicitor for the Applicant, Drummond J stated that the legislative intent in the drafting of the Act cannot have been to restrict "the disability support pension to a handful of the most severely
   disabled people…" and that the tribunal should rightly take account of the circumstances of the applicant and his or her work experience and skills and capacity to be retrained.

7. This Tribunal takes account of those authorities, but on the evidence before it, concludes that the Applicant does not meet the criteria of subsection 94(1)(c) of the Act, in that he does not have a continuing inability to work as further defined in subsection 94(2), and is therefore not eligible for the DSP.
   determination

8. The decision under review is therefore affirmed.

I certify that the 48 preceding paragraphs are a true copy of
the reasons for the decision herein of Rear Admiral A R Horton AO, Member

Signed: R Quinn     .....................................................................................
  Associate

Dates of Hearing  15 November 2001
           Date of Decision  17 December 2001
           Solicitor for Applicant  Ms C Jankulovska
           Advocate for the Respondent      Mr G Lozynsky