Nevard and the Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 974

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1795

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Gerald Arthur Patrick Nevard
  Applicant
           And    The Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date8 November 2000
PlaceSydney

Decision      The Decision under review is affirmed.
  .................[sgd].............................
  Ms SM Bullock
  Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - Continuing inability to work

Social Security Act 1991 ss94(1),(2) and (4)

Re Pusnijak and The Secretary Department of Family and Community Services Administrative Appeals Tribunal 12944, 26 May 1998
Secretary, Department of Social Security v Pusnijak (1999) 164 ALR 527
Secretary, Department of Social Security v Goudge (1989) 17 ALD 415

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Nevard of a decision made by the Social Security Appeals Tribunal ("SSAT") on 13 October 1999 that Mr Nevard was not qualified for a Disability Support Pension. The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services made on 20 July 1999 that while Mr Nevard satisfied subsections 94(1)(a) and (b) of the Social Security Act 1991 ("the Act"), in that he had a physical disability and an impairment of at least 20 points more under the Impairment Tables contained in Schedule 1B to the Act ("the Impairment Tables"), Mr Nevard did not satisfy subsection 94(1)(c) of the Act in that he did not have a continuing inability to work (T19). The ARO's decision affirmed a decision of the original decision maker, a delegate of the Secretary, Department of Family and Community Services made on 23 June 1999 (T16).
A hearing was held before the Tribunal in Sydney on 11 October 2000. Mr Nevard, the Applicant, provided oral evidence and was self represented. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Ms M Buckley, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following exhibits:
Exhibit Number       Description Date
A1      Statement by Mr Nevard    2 August 2000
A2(a) Radiology Report by Dr W K Wong        2 April 1996
A2(b) Medical Certificate by Dr J B Cameron    19 April 1996
A2(c)   Radiology Report by Dr B Markell 25 November 1999
A2(d) Radiology Report by Dr L North    6 February 1998
A2(e) Radiology Report by Dr P Pasfield          9 December 1998
A2(f)   Medical Certificate by Dr Campbell         17 November 1998
A2(g) Radiology Report by Dr I Lovett    8 February 2000
A2(h) Radiology Report by Dr P Travers           12 July 2000
A3      Report by Dr G Nicola, General Practitioner      28 July 2000
R1(a) Respondent's Statement of Facts and Contentions      8 March 2000
R1(b) Respondent's amended Statement of Facts and Contentions         3 October 2000
R2      Commonwealth Rehabilitation Service Vocational Assessment including Closure Report.           8 March 2000
R3      Report by Dr P T Quinn     15 February 2000
R4      Centrelink Standard Letter to the treating doctor of unrepresented customers       2 February 2000
R5      Extract from National Training Information Service Data Base on "Registered Training Organisations" concerning St George Careers Development Centre         10 October 2000

Issues

The issues to be determined in this matter relate to Mr Nevard's qualification for a Disability Support Pension. There is no dispute and the Tribunal accepts that Mr Nevard satisfies subsections 94(1)(a) and (b) of the Act in that he has a physical disability and has the required impairment of 20 points or more under the Impairment Tables.
The sole remaining issue for determination in this matter is whether, pursuant to subsection 94(1)(c) of the Act, Mr Nevard has a continuing inability to work. Thus, given that it is accepted and the Tribunal so finds that Mr Nevard has a physical impairment and that his impairment is 20 points or more under the Impairment Tables, the Tribunal must determine if Mr Nevard has a continuing inability to work because of the impairment in that:
i.His impairment is of itself sufficient to prevent him from undertaking any work within the next two years; and
ii.His impairment of itself is sufficient to prevent his undertaking educational, vocational or on-the-job training during the next two years, or if it does not so prevent this, the educational, vocational or on-the-job training is unlikely because of his impairment alone, to enable him to undertake any work within the next two years.

Legislation

The legislation relevant to a determination in this matter is contained within the Act and specifically in section 94 of the Act, which deals with qualification for Disability Support Pension. As relevant, section 94 provides:
"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;
…"
Subsection 94(2) of the Act deals with a person's continuing inability to work and subsection 94(4) deals with claimants who are 55 years or older. As relevant these provisions are:
"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.(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…"

7. Subsection 94(5) of the Act defines "educational or vocational training", "on-the-job training" and "work" and provides:
"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.
…"

Background

The following information is provided by way of background and the facts contained within are not in dispute.
·     Mr Nevard was born in England on 30 August 1942.
·     Mr Nevard immigrated to Australia in July 1955. He is divorced and lives alone.
·     Mr Nevard obtained his Higher School Certificate aged 17 years (T3,p52). He enrolled in a Bachelor of Economics Degree at Sydney University, however due to financial circumstances was only able to complete two terms of the course (Exhibit R2).
·     Mr Nevard has worked mainly in sedentary clerical positions including as a Credit Control Officer in Tooths and Co. His last full-time position in the Department of Defence, Garden Island, Sydney, was in the Payroll section and subsequently in the Asset Control area. Mr Nevard was retrenched from the Department of Defence in 1989 having worked there for five years.
·     Following cessation of employment at the Department of Defence, from 1 June 1992 to 25 April 1997, Mr Nevard had a position with the Leader Newspaper delivering local papers and leaflets for an average of 20 hours per week (T3, p53). This position required Mr Nevard to carry two large newspaper-filled sacks and deliver the papers on foot. Mr Nevard ceased this activity because of the pain in his back and leg.
·     On 19 May 1997, Mr Nevard was granted Newstart Allowance by the Department.
·     On 18 June 1998, Mr Nevard was referred to the Commonwealth Rehabilitation Service ("CRS"), Rockdale and was interviewed on 24 June 1998. Mr Nevard abruptly ceased his program with CRS on 18 November 1998 (Exhibit R2).
·     On 8 April 1999, Mr Nevard lodged a claim for Disability Support Pension (T3) claiming "osteo-arthritis of the spine" which commenced on 1 April 1996 and "damaged left knee" which commenced on 6 November 1985 (T3, p48).
·     Mr Nevard's treating General Practitioner at the time of his claim for Disability Support Pension was Dr B C Ong. Dr Ong completed a "Work ability information-PROFESSIONAL'S REPORT" on 8 April 1999, reporting that Mr Nevard had "retropatellar-chrondosis", "Cervical Osteoarthritis" and "Fracture right 2nd and 3rd metatarsal bone" (T11, p71). Dr Ong further noted that he had been Mr Nevard's "Family Doctor" for more than one year and that within the next six months, Mr Nevard would be able to work more than 20 hours per week (T11, p73).
·     On 28 May 1999, Mr Nevard was assessed by Health Services Australia Medical Adviser, Dr P Chew. Dr Chew reported that Mr Nevard's medical conditions are "cervical spine osteoarthritis with restricted neck movements particularly with extension, lateral flexion and rotation". Dr Chew noted that Mr Nevard experiences constant neck pain but was not at that time taking regular medication but was receiving physiotherapy. Dr Chew also reported that Mr Nevard had "left knee osteoarthritis" symptoms which were relieved by the medication Indocid. The third condition diagnosed by Dr Chew was a recent fracture of the right second and third metatarsal, which was painful for Mr Nevard when walking for prolonged distances. Dr Chew concluded that the appropriate impairment rating under the Impairment Tables was 20 points to reflect the severity of Mr Nevard's cervical spine osteoarthritis with his restricted neck movements.
Dr Chew concluded that:
"He needs retraining/rehabilitation if he is to return to suitable work. Work ergonomics may need to be assessed with reference to his neck. Suitable work may include sales, door attendant. His treating doctor had indicated a return to work in 6 months but his medical conditions are unlikely to change." (T13)
·     On 18 June 1999, Mr Nevard's claim for Disability Support Pension was rejected by a Departmental Delegate who decided that Mr Nevard did not have a continuing inability to work (T14). Mr Nevard was subsequently advised of this decision by letter of 23 June 1999 (T16).

· Mr Nevard sought a review of the Departmental Delegate's decision by an ARO who on 20 July 1999, affirmed the original decision-maker's decision.
· On 23 August 1999, Mr Nevard lodged an application for review of the Department's decision with the SSAT noting:
"Because of what my doctor and specialist stated + the pain I have to suffer. Also my doctor (Dr Ong) told me he made no statement that I would be able to work in 6 months time. My condition is a permanent one which is subject to deterioration." (T21)

On 13 October 1999, the SSAT affirmed the decision of the ARO determining:
"…The Tribunal finds that Mr Nevard's physical impairments are not of themselves sufficient to prevent him from doing any work in the next two years. As Mr Nevard has himself identified, his main obstacles to employment relate to his age and his need to update his knowledge. The Tribunal agrees with Centrelink that Mr Nevard could, with appropriate retraining, be able to return to work in the accountancy/credit control area/asset control area. He would not, in the view of the Tribunal, be prevented by reason of his physical impairments alone, from working in these areas." (T2, p10)
On 23 November 1999, Mr Nevard applied for review of the SSAT's decision to the Tribunal. He wrote:
"I have cervical osteo-arthristis, a condition which I first had diagnosed by Dr Ong on 1.4.96. It is a permanent condition which is worsening.
I was referred by Centrelink to Health Services Aust. for an independent assessment where I was given a disability score of 20, which is the requirement for receiving a permanent disability pension – yet I was refused same. This is discrimination." (T1, p2)

Evidence of Mr Nevard

Mr Nevard informed the Tribunal that his main health problems are:

Degeneration of the upper spine and more recently his lower back.
Bunions on his right foot
"Slight" damage to the left knee.

In relation to his upper spine condition, which the Tribunal confirmed with Mr Nevard as the condition diagnosed as cervical osteoarthritis, he stated that this pain is constantly present. At night, Mr Nevard is frequently woken by the pain, which occurs, at the top of his neck. His bones in this region also "creak". Mr Nevard stated that his neck condition is deteriorating. In addition he now has significant back pain, not previously detailed in his original claim for Disability Support Pension.
Mr Nevard has taken the prescribed medication Indocid for his cervical osteoarthritis for many years but in recent times, the medication was changed to a stronger medication by his most recent General Practitioner, Dr G Nicola. Mr Nevard was unable to recall the name of the new medication. At least three times per week, Mr Nevard is required to take a standard Panadol tablet dosage for pain in his neck and back. Mr Nevard has not recently received any other treatment but has in the past received physiotherapy. In 1998 or 1999, Mr Nevard visited a physiotherapist and found that there was "quite good relief" provided by these treatments. The effect however was not long lasting and Mr Nevard stated that he was not provided with instruction as to any exercises he might undertake to provide longer term relief of the symptoms. There is no intention that Mr Nevard undertakes any further physiotherapy treatment at this stage.
Mr Nevard consulted with an orthopaedic specialist, Dr J Vote, on 14 December 1998, however, the Tribunal understands that this was for the purpose of a medical report and no treatment was provided. Based on a report of a Rehabilitation Counsellor from the Commonwealth Rehabilitation Service ("CRS") a report from Dr Vote of 13 July 1998 concluded that Mr Nevard is "not fit for heavy work or work which involves persistent use of the arms above the head." (Exhibit R2).
Mr Nevard ceased consulting Dr Ong in about October 1999, having consulted him for a number of years. Mr Nevard explained that when Dr Ong declined to provide him with a full medical report about his conditions, Mr Nevard decided to consult another General Practitioner. To this end, Mr Nevard consulted with Dr P T Quinn in January or February 2000. Dr Quinn reported on 15 February 2000 that Mr Nevard has "extensive cervical spondylosis" which is of itself sufficient to prevent Mr Nevard from indefinitely performing any type of work for at least 30 hours per week and that this impairment prevented vocational training at the CRS and would continue to do so (Exhibit R3).
Mr Nevard ceased attending Dr Quinn because Dr Quinn would not provide another medical report. Since June/July 2000 Mr Nevard has consulted with another General Practitioner, Dr G Nicola. Mr Nevard referred the Tribunal to Dr Nicola's report of 28 July 2000 in which the doctor reported that his patient suffers from extensive cervical spondylosis with an impairment of 20 points. Dr Nicola concluded:
"

This impairment is sufficient to prevent him from performing any work for at least 30 hours per week as it will interfere with free neck mobility and subjects him to increased pain on prolonged sitting, lifting or working above head level etc.
He has done clerical work, which he is now unable to do for the reasons discussed above.
In my opinion, his impairment would prevent him from undertaking educational or vocational training as prolonged sitting, prolonged and frequent use of keyboard would not be suitable considering the above mentioned impairment.
For this reason, I think that such training would be unlikely to (sic) Mr Nevard to do work for at least 30 hours per week at awards wages (Exhibit A3)
"

In contrast to Mr Nicola's opinion, the Tribunal noted the opinion of Health Services Australia Medical Adviser, Dr P Chew, who on 28 May 1999, concluded that despite extensive cervical osteoarthritis with restricted neck movement, Mr Nevard could undertake retraining or rehabilitation and following this, could attain suitable work including in "sales" or as a door attendant. Mr Nevard stated that he would not be able to sell goods in a shop as he would be constantly on his feet, moving and lifting and this would cause him significant pain in his neck and upper spine. Mr Nevard indicated that he may be able to undertake telephone sales work but if there were a great deal of computer entry associated with such a position, this would also be too painful for him. In relation to duties as a door attendant, Mr Nevard noted that he did not know such positions existed anymore.
On 17 August 1998, Mr Nevard had been assessed by CRS Rehabilitation Counsellor, Ms L Winterbottom, in order to "identify jobs/retraining options and to establish vocational direction for the Rehabilitation Plan." (Exhibit R2). Ms Winterbottom noted that Mr Nevard's stated job preferences were as a Credit Controller, Accounts Clerk or in administration or sales. Following a labour market investigation undertaken by CRS on 11 September 1998, it was shown that advertised vacancies in the Sydney Morning Herald provided a greater number of positions for Accounts and Administration Clerks than those for Credit Controllers. Upon investigation of the knowledge, skills and experience required for such positions, it was further discovered by the CRS that for the positions of Accounts Clerk and Credit Controller, many organisations were requiring previous experience and computer literacy as part of their essential criteria. The CRS concluded that Mr Nevard's previous relevant experience had not been in a computerised environment. The Rehabilitation Counsellor then explored with four organisations the computer knowledge and skills that would be required in their organisations for such positions. The CRS found that at that time, for the positions of Accounts Clerk and Credit Controller, a knowledge and understanding of "Word 97" and "Excel 97" were generally required, whereas for the position of Administration Clerk although "Word 97" was still desirable, "Excel 97" was as important (Exhibit R2).
Mr Nevard's initial CRS training involved him being referred to undertake a "Type Quick" course at CRS Rockdale in order to improve his current typing speed and orientate him to the computer prior to the commencement of other computer courses. Mr Nevard was required to attend the CRS Rockdale each day at 2pm to undertake what he described as "keyboard training". Mr Nevard stated in his oral evidence that this activity caused him a great deal of pain in his neck. He further noted that he was not informed about occupational health and safety issues such as taking twenty minute breaks or the necessity of having suitable chairs and adjusting the height of the chair to ensure optimum occupational health and safety requirements. Mr Nevard told the Tribunal that he had reported to the receptionist about his level of discomfort as a result of the training, but no action was taken about this. Furthermore, Mr Nevard explained that he could not see the relevance of this training, nor did he recall it being explained to him. In this context, Mr Nevard then had a dispute with CRS staff about his use of the CRS telephone for personal calls. Mr Nevard informed the Tribunal that on one particular day when he was confronted about his use of the telephone, this "got his back up" and he left the CRS in anger deciding that he would not return.

Mr Nevard stated that he understood the need to undertake vocational training in computer software packages relevant to his preferred work in assets or credit control or as an Accounts/Administration Clerk. However, he could not see the relevance, in the absence of such specific training, of undertaking word processing or a "Type Quick" course. Mr Nevard reiterated that he did not recall the discussion as outlined in the Vocational Assessment report of a long-term rehabilitation and vocational plan for him nor any goals.
Mr Nevard further stated that he would be very happy to undertake vocational/rehabilitation training (be that in computer software packages or otherwise) because he realised that he needed to update his skills in the accounts, credit and assets control area. He agreed that he was fluent in spoken and written English and had no intellectual difficulties.
While Mr Nevard was willing to undertake vocational/rehabilitation training, he identified the fundamental barriers of his age and physical condition as significantly impacting on his ability not only to work but also to obtain work. Mr Nevard stated that he had ceased looking for employment approximately two years ago. He related to the Tribunal that despite his enquires he was unsuccessful in gaining positions in the suitable work areas because of his age.
Mr Nevard has recently made enquires of St George TAFE in relation to what he considered to be various relevant computer software package training courses, and noted that such courses cost approximately $99.00.
Mr Nevard has had neither referral nor contact with a Departmental Disability Officer. He indicated his willingness to return to an organisation such as CRS to reassess his vocational/rehabilitation training needs and to then participate in any relevant training which might update his skills in the areas of administration, accounts, or credit or asset control.
Currently, in an attempt to minimise his pain, Mr Nevard sits in a high back chair. If he undertakes any prolonged activity, he experiences great neck and back pain, he told the Tribunal. Mr Nevard illustrated this point by referring to the difficulty he had in writing a two-page letter to the Tribunal. It appears that this correspondence took Mr Nevard approximately 35 minutes to write; because of the pain in his neck, shoulders and hand, he had to have a break after every 10 to 12 minutes.
Mr Nevard further informed the Tribunal that in 1995 or 1996 he had to give up golf because of his back pain. His only other recreation is an occasional walk from his home to Botany Bay or his daily walk of 150 yards to the shops. Because of his pain and inability to carry heavy objects, Mr Nevard has to shop on a daily basis, only carrying a few items at a time. Mr Nevard stated that he can sit in his high back chair for up to two hours watching videos. Once per fortnight he will "drop into a neighbour's home". As stated to the SSAT, Mr Nevard is only really ever comfortable by being prone in an armchair or lying on his back. Mr Nevard attends the Rockdale RSL club once a year to pay his fees and again on his birthday. He has a sister living in Berrima but he has little contact with her. Mr Nevard concluded he is not socially active and has had to give up many recreational activities because of his health problems.
Mr Nevard is able to use public transport as long as he obtains a seat. He is able to drive a motor vehicle short distances but is unable to drive greater than 30 kilometres per week.
Mr Nevard lives alone in a two-bedroom house. He is able to sweep his wooden floors with difficulty, only undertaking this activity every two or three weeks. He is able to undertake minimal housework and at this stage does not have outside assistance. Mr Nevard is able to cook his own food and does this "in bulk" then freezing individual meals. Clothes washing is undertaken by hand on most occasions and there is some pain associated with this activity. Hanging out clothes does not present a problem. He is unable to mow the lawns.
In April 1999, Mr Nevard could sit up to 20 minutes at a time without having to take a break or adjust his position because of pain. Mr Nevard told the SSAT in October 1999, that he feels pain when he sits in one place for more than five to eight minutes. There is nothing that he can do to relieve the pain apart from take medication or lay prone in an armchair or on the floor.
Referring to previous employment, Mr Nevard stated that he had enjoyed his work in the payroll, accounts and asset control sections of the Department of Defence and at Tooths and Co. He considers that he has the aptitude and skill for this type of work.
Currently, Mr Nevard is in receipt of a Newstart Allowance at $350.00 per fortnight but is exempt from the Activity Test because of continuing Medical Certificates.
Mr Nevard noted that while he had been sitting for approximately two hours during the hearing, he was in considerable discomfort in his upper neck and spine area. Thus, while he could sit if he had to for up to two hours, he experiences significant pain. Mr Nevard reiterated that he needed to have a break at the absolute maximum every 20 minutes. Any position or training he undertook, would need to allow for such a break in activity. Mr Nevard noted he is 58 years of age; he claimed that the combination of his severe physical disability and age prevent him from obtaining employment. Mr Nevard stated that he knows exactly what he can and cannot do and was certain that working a full day would leave him in considerable pain and probably cause him to be unable to attend work the next day.
Submissions
Mr Nevard submitted that he clearly has physical disabilities, principally his cervical osteoarthritis, which is deteriorating. He submitted that while he is willing to undertake training to update his skills and participate in a rehabilitation programme in order to undertake work in credit or asset control, telephone sales or in an accounts/administrative position, he would find great difficulty in working 30 hours per week.
However, Mr Nevard contended that even if he were successful in undertaking training, he would be unable to obtain employment because of his age. He maintained that he wishes to work, but he submitted that his age and the field of suitable work for him would make it difficult for him to be successful. This has been his experience when attempting to obtain suitable positions in the past. Mr Nevard asked that the reports of Dr Quinn and Dr Nicola be relied upon in conjunction with the many radiological reports, which support the level of severity of his physical condition. Mr Nevard contended that it was not fair that the Department only referred selectively to the reports of Dr Ong and Dr Chew and not to those of his more recent treating doctors.
Ms Buckley, for the Respondent, submitted that subsections 94(1)(a) and (b) of the Act were satisfied. Accordingly, subsection 94(1)(c) as defined in subsection 94(2), was the only issue to be determined.
Ms Buckley submitted that the Tribunal must confine its consideration of this matter to the period from the date of claim, that is 13 April 1999 and three months afterwards, pursuant to subsection 100(3) of the Act. The Tribunal was referred to Secretary, Department of Social Security v Goudge (1989 17 ALD 415). Ms Buckley sought to rely upon this decision as authority for the proposition that where a person is not qualified for a pension or allowance at the time of lodgement, the claim ceases to have effect except if the claimant becomes qualified within three months.
Referring to the SSAT's decision, Ms Buckley submitted that the SSAT was correct in its determination that Mr Nevard did not have a continuing inability to work as his physical impairments were not of themselves sufficient to prevent him from doing any work in the next two years. Further, the SSAT had determined that with appropriate retraining, Mr Nevard would be able to return to work in the accountancy, credit control or asset control areas and Ms Buckley contended that the evidence before the Tribunal supported the SSAT's conclusion.
Ms Buckley considered the more recent medical reports supplied by Mr Nevard. She noted that in Dr P Quinn's medical opinion of 15 February 2000, the condition of cervical osteoarthritis is of itself sufficient to prevent Mr Nevard from indefinitely undertaking any work. Further, Dr Quinn opined that Mr Nevard would be prevented form undertaking vocational retraining because he had attempted this in the past with the CRS and had not been able to complete this training because of his disabilities. Ms Buckley submitted that in fact, Mr Nevard had left the CRS retraining course for reasons unrelated to his disability. Mr Nevard had left the course following a dispute over his use of the office telephone for personal calls.
Referring to the report of Health Services Australia Medical Adviser, Dr Chew, Ms Buckley submitted that this opinion should be relied upon, that Mr Nevard's disabilities are unlikely to change and that he would benefit and be able to participate in retraining or rehabilitation to enable him to return to suitable work such as in sales or as a door attendant. Dr Chew had not agreed with Mr Nevard's then General Practitioner, Dr Ong, who considered that Mr Nevard would be able to return to his previous work after a six month period.
Ms Buckley submitted that the vocational and rehabilitation goals assessed in 1998 by the CRS remained entirely appropriate and achievable. The CRS would be willing to have Mr Nevard return and the evidence is that he would be willing to participate in further rehabilitation/vocational training. Ms Buckley noted that on 19 April 1996, Dr Cameron advised Mr Nevard to avoid heavy lifting and the Respondent accepted this. Further, on 17 November 1998, Dr Campbell advised that Mr Nevard's neck pain was probably exacerbated by working on the keyboard. Ms Buckley submitted that although performing repetitive tasks for lengthy periods may exacerbate Mr Nevard's neck pain, the specialists in rehabilitation at the CRS assessed that Mr Nevard was capable of undertaking computer courses and performing keying-related work. While Ms Buckley further noted the report by Dr Nicola of 28 July 2000, that full-time work would interfere with Mr Nevard's free neck mobility and that he is unable to undertake clerical work because of increased pain on prolonged sitting, she contended that no information was provided as to the basis of these assessments and the extent of any interference was untested. Dr Nicola's opinion contrasted with the actual vocational assessment of the CRS.
In Ms Buckley's written submission, she noted that there is no dispute that Mr Nevard is restricted to full-time work where he is not required to persist at tasks which strain his neck for lengthy periods without breaks. The Respondent contends however that Mr Nevard's impairments do not of themselves prevent him from undertaking light full-time work such as in sales or as a door attendant within the next two years with appropriate work ergonomics such as required for occupational health and safety. Mr Nevard's evidence is that he has worked in a range of clerical positions until 1989 when he was retrenched. He could therefore take advantage of his skills in accounts/credit control, which with training on current appropriate computer software packages could enable him to perform work in keeping with his impairments and skills. Ms Buckley submitted therefore that work exists of a light nature, which Mr Nevard could perform despite his impairments. The test for the grant of a Disability Support Pension is, Ms Buckley submitted, not whether such work is actually available or whether an employer would actually provide Mr Nevard with a job, but rather whether his impairments are sufficient to prevent him from performing such work. Therefore, Ms Buckley submitted that subsection 94(2)(a) of the Act is not satisfied in this case.
If however the Tribunal found that subsection 94(2)(a) of the Act is satisfied then the Tribunal would have to consider Mr Nevard's capacity for training. Referring again to medical opinion, Ms Buckley noted that both Dr Quinn and Dr Nicola contend that Mr Nevard is prevented from vocational training. These opinions related, Ms Buckley submitted, to the stated limit of sustained effort for which Mr Nevard feels capable, that is between eight to twelve minutes. Mr Nevard's evidence to the SSAT however indicated a higher tolerance for a sustained work effort of 20 minutes. Ms Buckley noted that there is no record of any limitation in the CRS closure Report (Exhibit R2). Therefore, Ms Buckley submitted that Mr Nevard's evidence concerning limitation on the length of time he can sustain work is inconsistent with the professional assessment of the CRS Rehabilitation Counsellor who opined that Mr Nevard is able to undertake appropriate computer courses to enable him to access work in the clerical fields such as in accounts, administration or as a Credit Controller. Ms Buckley contended that the CRS assessment is to be preferred. Indications from the CRS are that Mr Nevard's impairments would not prevent him from participating in educational, vocational or on-the-job-training. Therefore, Ms Buckley submitted that the options for Mr Nevard's retraining and rehabilitation have not been fully realised.
Ms Buckley submitted that Mr Nevard has good English skills, is intelligent, has worked in clerical positions previously and does not fall within the category of persons as dealt with in Secretary, Department of Social Security v Pusnijak (1999) 164 ALR 527. In that decision, Drummond J determined that:
"In my opinion, the Applicant has failed to demonstrate any error of law on the part of the Tribunal in taking into account Mr Pusnijak's actual work skills and experience and capacity to be retrained for any work that he could thereafter do when it determined that Mr Pusnijak had "a continuing inability to work because of an impairment" within the meaning of that expression in s94(2)."

Ms Buckley submitted that unlike the Applicant in Pusnijak (supra), Mr Nevard was capable of being retrained, was willing to do so and would benefit from it. The CRS had assessed his skills and had undertaken a detailed assessment of the availability of work. In relation to Mr Nevard's age of 57 years at the time of the claim, this had been taken into account, Ms Buckley submitted, by the CRS in its labour market investigation in September 1998.
Ms Buckley contended that as Mr Nevard has a good level of pain control and is required to take Panadol only three times per week, it is entirely possible and reasonable that Mr Nevard would be able, with his capacities, to undertake training and update his skills. Furthermore, Ms Buckley noted that Dr Vote in providing his medical certificate had only stated that Mr Nevard had a physical condition of cervical spondylosis, with no certification that he was unable to work or be retrained, only that his impairment restricted his lifting heavy objects. Accordingly, Ms Buckley submitted that Mr Nevard does not satisfy subsections 94(2)(b)(i) and (ii) of the Act and also is not assisted by subsection 94(4) of the Act. This being the case, Ms Buckley submitted that the evidence to the Tribunal shows that Mr Nevard does not have a continuing inability to work as defined in subsection 94(2) of the Act. Mr Nevard is not prevented by his impairment from undertaking on-the-job training or educational or vocational training, which could equip him for work such as in sales or as a door attendant or retraining for work such as in accounts, credit or assets control. In all the circumstances, Ms Buckley submitted that as Mr Nevard does not satisfy the requirements contained in subsections 94(1) and (2) of the Act, Mr Nevard does not qualify for a Disability Support Pension and the decision of the SSAT should be affirmed.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the relevant legislation.
The Tribunal found Mr Nevard to be a credible and truthful witness.
There is no dispute in this matter as to Mr Nevard having a physical disability and the Tribunal finds that Mr Nevard suffers form cervical osteoarthritis, osteoarthritis of the left knee and fracture of the second and third metatarsals. Thus, Mr Nevard satisfies subsection 94(1)(a) of the Act.
The Tribunal notes from Mr Nevard's evidence, that he now suffers from significant back pain, which results in a further restriction of his activity. Mr Nevard also reported that he has a bunion, which will require a surgery.
Noting Mr Nevard's evidence and the objective medical evidence of Dr Ong and Dr Chew, the Tribunal considers that 20 points is appropriate for cervical osteoarthritis from Table 5.1 to reflect that Mr Nevard has constant neck pain and loss of three quarters of the normal range of movement. The higher rating of 30 points is not appropriate as Mr Nevard has not lost almost all movement in his neck and there is not a complete ankylosis in position or function. In relation to Mr Nevard's osteoarthritis of the left knee and fracture of the right second and third metatarsals, the Tribunal considers that from Table 4 the appropriate rating is zero. Nonetheless, as Mr Nevard has an impairment of 20 points for his cervical osteoarthritis, he has satisfied subsection 94(1)(b) of the Act.
Before turning to the issue of Mr Nevard's continuing inability to work as is required for consideration under subsection 94(1)(c) of the Act, the Tribunal finds that there are a number of different diagnoses of Mr Nevard's various conditions which must be dealt with. In this regard, the Tribunal has previously noted Mr Nevard's report of the condition of lower back pain and bunion. The Tribunal also further notes a diagnosis of cervical spondylosis made by Dr J Cameron on 19 April 1996, in addition to diagnosing spinal osteophytes (Exhibit A2(b)). On 14 December 1998, Dr Vote, Orthopaedic Surgeon, diagnosed cervical spondylosis (T5). Dr Markell, Radiologist, on 25 November 1999, also diagnosed the condition of cervical spondylosis. Dr Phehwe, Radiologist, reports cervical spondylosis and osteophytes on 23 August 1999 (T22). Further Dr L North, on 6 February 1998, reported degenerative spondylosis of the cervical spine with prominent osteophyte lipping. Dr P Pasfield, Radiologist, reported on 6 December 1998, that Mr Nevard had advanced degenerative change in the cervical spine with a loss of disc space at the C3/4 and the C6/7 levels with restriction of neck movement noted. The conclusion by Dr Pasfield was that Mr Nevard has significant degenerative cervical spondylosis (Exhibit A2(e)). Dr Campbell reported neck pain on 17 November 1998 (Exhibit A2(f)) and on 8 February 2000, Dr Lovett reported widespread degenerative change involving the facet joints bilaterally of the cervical spine and particularly on the left side. Associated osteophytes were also noted by Dr Lovett (Exhibit A2(g)). On 12 July 2000, Dr P Travers reported extensive degenerative changes in the cervical spine (Exhibit A2(h)). Dr Nicola on 28 July 2000, reported cervical spondylosis which he opined prevented Mr Nevard from undertaking educational or vocational training because of prolonged and frequent use of the keyboard and his inability to work for at least 30 hours per week (Exhibit A3). Dr Quinn on 15 February 2000 again reported that Mr Nevard had a condition of extensive cervical spondylosis, confirmed by a CT scan and that Mr Nevard could only work for 10 to 12 minutes without stopping and would be unable to perform any work for at least 30 hours per week and would be prevented by his impairment from undertaking vocational training (Exhibit A4).

Thus it can be seen that in addition to the claimed condition of cervical osteoarthritis, there is a further condition of cervical spondylosis reported by objective medical opinion. The conditions of cervical spondylosis and cervical osteoarthritis are different conditions and have different ICD codes under the "International Statistical Classification of Diseases and Related Health Problems". Added to these conditions is the recently reported lower back pain which from Mr Nevard's evidence, the Tribunal also considers as having a significant impact on his abilities to undertake daily activities as well as participate in vocational/education training. The difficulty for the Tribunal is that there are number of significant unclaimed conditions which have not been taken into account at the time of determining Mr Nevard's claim for Disability Support Pension as at 8 April 1999 and three months afterwards. The Tribunal has already found that at the time of Mr Nevard's claim for Disability Support Pension, that he had the conditions of cervical osteoarthritis, osteoarthritis of the left knee and the fracture of the right second and third metatarsals. The existence of these conditions is supported by Mr Nevard's treating Doctor, Dr Ong and further by the Health Services Australia Medical Adviser, Dr Chew.
In terms of whether or not in relation to Mr Nevard's claimed conditions he has an inability to work as required by subsection 94(1)(c) of the Act, the Tribunal turned to consider subsection 94(2) of the Act. Subsection 94(2)(a) requires that the impairment of itself be sufficient to prevent the person from doing any work within the next two years. Despite Mr Nevard having the unclaimed and unassessed conditions of cervical spondylosis and lower back pain the Tribunal finds that the condition of cervical osteoarthritis as claimed, was sufficient at the time of the claim to prevent Mr Nevard from undertaking any work within the next two years. Accordingly, Mr Nevard satisfies subsection 94(2)(a) of the Act.
The Tribunal turned next to consider subsection 94(2)(b) of the Act. Given all the evidence concerning the claimed conditions, the Tribunal is of the view that at the time of claim and three months subsequent, Mr Nevard was capable of undergoing educational or vocational training or on-the-job training. Mr Nevard's clear evidence was that he would be willing to participate in such training particularly if it was vocationally based and designed to upgrade his skills in the asset/accounts control administrative areas of work. Further, Ms Buckley's information to the Tribunal, which it accepts, is that the CRS would be willing to reassess Mr Nevard and organise any training thought appropriate. The question remains however whether or not such training, with Mr Nevard's impairments, is likely to enable him to undertake work within the next two years. Further, in light of Mr Nevard's age at the time of the claim, subsection 94(4) of the Act also becomes a relevant factor for consideration. Thereby, it is appropriate to confine the question of available work to Mr Nevard's locally accessible labour market.
A labour market analysis was undertaken by the CRS in Mr Nevard's chosen prospective fields of employment, namely accounts, sales, and asset control. The analysis indicated that there were many positions available for such work but that the requirement was for experience in computer software packages such as the then "Word 97" and "Excel 97". Mr Nevard had in fact commenced a vocational program with the CRS towards this end, however because of a dispute between himself and CRS personnel over use of the telephone, Mr Nevard left the course. He did not, as Dr Quinn reported, leave because of the difficulty with the demands of the training but rather because of the personal dispute. On all the evidence, the Tribunal finds that Mr Nevard at the time of claim and three months subsequent could have participated in vocational or educational training to update his skills in his chosen area of work. He had previous work experience in these areas but needed to update his skills. Further, the Tribunal considers that given the labour market analysis detailing employment available to him with his updated skills, he would have been able to work within the following two years.
Accordingly the Tribunal determines that Mr Nevard does not meet subsection 94(2)(b)(ii) of the Act. The Tribunal considers that Mr Nevard's participation in training would assist him to obtain work within his locally accessible labour market within the next two years. In such circumstances and for all the reasons set out above, the Tribunal must affirm the decision under review.
The Tribunal has discussed at length Mr Nevard's other conditions, not previously claimed, of cervical spondylosis and lower back pain. The Tribunal is bound by the requirements as detailed in the Introduction to the Impairment Tables that in relation to Disability Support Pension, for conditions to be considered they must be fully documented, diagnosed following investigation, treated and stabilised. At this time, these unclaimed conditions have not been assessed for the purposes of Disability Support Pension. The Tribunal is of the view that had these conditions been claimed, their significant presence would require a very careful consideration of the impact on not only Mr Nevard's ability to work but also his ability to participate in any vocational or educational training. The Tribunal is of course bound by the relevant legislation; it is not possible to assess impairments that are not part of the Applicant's claim. Accordingly, the matrix of claimed conditions, relevant circumstances and legislative requirements mean that in relation to this application for review, Mr Nevard is not entitled to receive the Disability Support Pension.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ............[sgd}....................................................................
  Associate
Date of Hearing  11 October 2000
Date of Decision  8 November 2000
Applicant's Representative  Self Represented
Respondent's Representative                  Ms M Buckley, Departmental Advocate

[2000] AATA 974

8 November 2000

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Disability Support Pension

Continuing inability to work