Rababi and Secretary, Department of Family and Community Services

[2002] AATA 763

DECISION AND REASONS FOR DECISION [2002] AATA 763

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1774

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

DECISION

Tribunal       Ms J A Shead, Member    

Date5 September 2002    

PlaceSydney

Decision      The decision under review is affirmed.  
  ............................................
  [SGD] J A Shead
  Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – whether applicant has continuing inability to work 

Social Security Act 1991 - sections 94; 100(3)

REASONS FOR DECISION

Ms JA Shead, Member                  

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mohammad Rababi ("Mr Rababi") of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 30 October 2000. The SSAT affirmed a decision made by a Centrelink delegate of the Secretary of the Department of Family and Community Services ("the Department") on 30 December 1999 to cancel Mr Rababi's disability support pension. This earlier decision was reviewed and affirmed by an Authorised Review Officer ("ARO") on 27 September 2000.

2. A hearing was held before the Tribunal on 18 July 2001.  Mr Rababi gave oral evidence to the Tribunal.  Mr Brian Williams gave evidence in support of Mr Rababi.  An interpreter competent in the Arabic language assisted the Tribunal during the evidence of Mr Rababi. A departmental advocate, Ms Hannelore Schuster, represented the Department.  

3. The Tribunal took into evidence documents submitted pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents", T1 – T39). Ms Schuster provided the Tribunal with the Department's Statement of Facts and Contentions dated 16 July 2001. The following exhibits were also tendered to the Tribunal:

Exhibit          Description  Date  
R1      Dr F Ghabrial FRCS           14 December 2000 
R2      Dr Khalil I Moustapha        3 March 2001           
R3      Dr W Back     29 May 2001
R4      Dr W Back     16 July 2001

1. By way of background, the Tribunal extracts the history of the matter from the SSAT decision:

   "1. Mr Rababi last worked as a labourer in 1981. He was granted disability support pension in May 1998 when his permanent medical conditions included low back pain, neck pain, knee and ankle pain, sciatica and depression.  Mr Rababi was examined for medical review by Dr Z Anjum of Health Services Australia (HSA) on 23 December 1999. Dr Anjum found that Mr Rababi has neck pain, lumbar spondylosis, right ankle pain and depression. He assigned an impairment rating of ten points from Table 5.2 for the lumbar spondylosis and recommended that Mr Rababi's depression and ankle condition be reviewed after three months.
   2. Dr H Fitzgerald of HSA undertook a file review on 27 January 2000 and decided to organise an independent psychiatric opinion concerning Mr Rababi's incapacity and its work aspects. Mr Rababi saw Dr M Walden, Consultant Psychiatrist, on 23 March 2000 and the Dr D Keen of HSA conducted another file review on 1 May 2000. Dr Keen found that Mr Rababi has a total impairment rating of twenty points and that neither his musculo-skeletal nor his psychiatric condition prevent him from undertaking full-time light work not requiring heavy lifting, repeated bending or active mobility.  Mr Rababi supplied further medical information and underwent another examination by Dr A Elliott of HSA on 8 August 2000. Dr Elliott agreed with the total impairment rating of twenty points and found that Mr Rababi is currently fit for full-time light sedentary work. Dr Elliott acknowledged that Mr Rababi has several non-medical barriers to obtaining employment. The disability support pension was cancelled on 9 August 2000.
   3. Mr Rababi requested review of the decision by an authorised review officer (ARO). The ARO agreed with the HSA findings and found that Mr Rababi does not have a continuing inability to work.  The decision was affirmed in a letter dated 27 September 2000. On 5 October 2000 Mr Rababi lodged an appeal against the decision with the Social Security Appeals Tribunal. The matter was heard on 30 October 2000. "  (T2)

2. The SSAT did not alter that decision, for the reason set out in paragraphs 25 and 26 of its decision:

   "25. The treating doctor is of the opinion that it will be more than two years before Mr Rababi will be able to return to any kind of work. HSA agrees that Mr Rababi is unfit to return to his usual work as a labourer but on three occasions HSA has found that Mr Rababi is fit for light work with some restrictions. The tribunal was in no doubt that Mr Rababi's low back condition would not prevent him from undertaking the light process work suggested by HSA. The tribunal noted that the consultant psychiatrist after a comprehensive interview found that Mr Rababi's depression is not of sufficient severity to prevent him from working. The tribunal accepted this opinion and accordingly found that Mr Rababi's impairment is not of itself sufficient to prevent him from doing any work in the next two years. This means that he does not satisfy section 94(2)(a) of the Act and does not have a continuing inability to work. Consequently Mr Rababi does not satisfy section 94(1)(c) and is not qualified to receive disability support pension.
   26. With regard to the question of educational, vocational or on-the-job training the tribunal noted the comment by HSA that because of his prolonged absence from the work force, lack of English, and lack of transferable skills Mr Rababi will require intensive vocational rehabilitation and training during the next two years. The tribunal earnestly hopes that this will be made available to him."

3. In the Application for Review to the Tribunal for review of the SSAT decision, Mr Rababi's reasons for the Application were (T1):

   "For the past 20 years I have been constantly experiencing difficulties from a physical point of view, due to a severe neck, back and leg injuries sustained at work and a motor vehicle accident.  I have had constant, severe and on going symptoms.  My symptoms are according to my treating doctor's decision are permanent and continuing.  Due to my health situation I have a severe depression and on medication."

1. In response to the Tribunal's question as to why he disagreed with the Department's decision, Mr Rababi stated "I have break down. My medical conditions don't allow me to work or even look for a job."

1. On behalf of the Department, Ms Schuster advised the Tribunal that for the purposes of subsection 94(1)(a) of the Social Security Act 1991 ("the Act") it was conceded that Mr Rababi had permanent medical conditions and those conditions of low back pain warranted 10 points and depression warranted 10 points, a total impairment rating of 20 points so he satisfied section 94(1)(b) of the Act. It was however submitted that Mr Rababi does not have a continuing inability to work in terms of section 94(2)(b) (i) or (ii) of the Act.
   ISSUES BEFORE THE TRIBUNAL

2. The issues in this matter relate to whether or not Mr Rababi is qualified to receive a disability support pension, and in particular:

• whether Mr Rababi has a physical, intellectual or psychiatric impairment; and if so

• whether Mr Rababi has an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act, as required by subsection 94(1)(b) of that Act; and if so,

• whether Mr Rababi has a continuing inability to work as required by subsection of 94(1)(c) of the Act.

1. To qualify for a disability support pension all three subsections of section 94 of the Act must be satisfied. Also, pursuant to section 100 of the Act, the Tribunal has to consider Mr Rababi 's conditions on the day on which his claim was lodged and for a period of three months starting immediately after the day on which his claim was lodged.
   LEGISLATION

2. The legislation relevant to the Tribunal's determination of this matter is section 94 of the Act, which sets out the qualification for a disability support pension. It relevantly provides:

   "94. Qualification for disability support pension
   (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;

   …
   (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 form 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.

   Note: For 'work' see subsection (5).

   (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.

   (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 the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
   (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.…"

3. In general terms, the impairment rating is determined under Schedule 1B of the Act and the "continuing inability to work" is determined by reference to subsections 94(2), (3) and (5) of the Act.

4. Section 100 of the Act (effective at the time of the original decision), deals with the commencement day for disability support pension and relevantly states:

   "100. Early claim
   …
   (3) If:

   (a) a person lodges a claim for a disability support pension; and
   (b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
   (c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

   the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

EVIDENCE

1. Mr Rababi was born 1 March 1958 in Lebanon.  In Lebanon he had worked in an import/export office checking loads. He first arrived in Australia in 1977.  He had worked as a labourer and he last worked in 1981.

2. In evidence as to how his conditions affected him, Mr Rababi told the Tribunal that he had severe pain.  He filled in his day by walking, reading, sitting down and sleeping. Mr Rababi last had physiotherapy treatment about six months before the hearing.  He stated he could not stand for more than 7 minutes because of back pain, pain down the left leg and ankle.  He experienced pain after sitting for a while.  He told the Tribunal that sometimes he spent 3 weeks in bed because of the pain.  He sometimes drove to the library and to a club.  He could prepare a meal but found it hard to stand up for a long time.  He ate take away food.  He had been consulting psychologist Dr Khalil I Moustapha since about 1992.

3. In relation to the work ability report of Health Services Australia Medical Adviser Dr A Elliot (T32, at page 194), Mr Rababi disagreed with Dr Elliot's opinion that he was fit for full-time light sedentary duties with restrictions.  The Tribunal put to Mr Rababi that Dr Elliot opined that Mr Rababi was suitable for light process and automatic photographic processing.  Mr Rababi told the Tribunal that the doctor did  "not know" him.  

4. In response to the Tribunal's questions, Mr Rababi doubted he could work as a taxi driver because he had difficulties coping with people however he stated he would like to work as a courier. 

5. In response to questions form Ms Schuster, Mr Rababi stated that he did not always understand everything that was said to him in English, and asked if he was given clerical work whether he could do it, Mr Rababi stated "I'd love to but the pain comes and goes" and that he intended to do some courses in the future.

6. Mr Williams told the Tribunal that he shared accommodation with Mr Rababi & one other person and he had known Mr Rababi for about 3 years.  He observed Mr Rababi in pain and considered he was an insomniac.  He observed that about once a week Mr Rababi has an episode during the week of "shaking and carrying on"; he stated that Mr Rababi would remember the episode next morning but Mr Williams doubted whether Mr Rababi knew how bad he was during those episodes.  He had often assisted Mr Rababi to stand from a sitting position.  From his observations, Mr Williams doubted whether Mr Rababi could work.
   SUBMISSIONS

7. Mr Rababi did not make any further submissions in support of his Application for Review.

8. On behalf of the Department, Ms Schuster conceded that Mr Rababi had permanent conditions including neck pain, lumbar spondylosis, right ankle pain and depression that satisfied section 91(1)(a) of the Act. It was also conceded that those conditions warranted the following impairment ratings and for reasons summarised as follows:

Condition     Table Rating points          Comment     
Neck pain     Table 5.1               0    Dr Elliott; T32; intermittent pain with occasional radiation.           
Low back pain         Table 5.2              10    Dr Elliott, T32; loss of 25% of the normal range of movement in the lower back and referred pain mainly to the left leg.
Right ankle    Table 4                   0    Dr Keen, T29; long term condition causing mild interference with mobility.  
Depression   Table 6                 10     Dr Keen, T28 permanent condition with mild symptoms.           

1. In relation to the submissions concerning subsection 94(1)(c), the written Statement of Facts and Contentions on behalf of the Department stated in part as follows:

   "4. The respondent contends that the applicant was not qualified for DSP on 30 December 1999 when an officer of the respondent made the decision to cancel his payment on the basis that the applicant did not have a 'continuing inability to work'..
   5. The applicant is a 43 year old man who last worked as a labourer in 1981..
   6. The respondent accepts the evidence provided by Health Services Australia medical advisers and agrees that the applicant would be unable to sustain work required heavy lifting, bending, pushing/pulling, repetitive head turning, prolonged walking/standing, walking on uneven surface and maintaining static posture for long periods of time.
   7. Nonetheless, it is contended that there are some occupations of a sedentary nature which would enable the applicant to work for at least 30 hours per week, such as light process work, some sales work and work such as that of an automatic photograph processor."

CONSIDERATION OF THE ISSUES

1. The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and the legislation.

2. Mr Rababi gave evidence and was cross-examined.

3. Having reviewed the material and heard the oral evidence the Tribunal accepted the impairment ratings set out in paragraph 20. Accordingly the impairment ratings for Mr Rababi's conditions were sufficient to satisfy eligibility under sections 94(1)(b) of the Act for disability support pension.

4. It is acknowledged that Mr Rababi was not fluent in English and his education was a long time ago, making obtaining work or retraining difficult.  It was however the assessment of several Health Services Australia doctors, that his physical medical conditions would not have prevented him from undertaking light work, and despite the opinion of his treating psychiatrist, Dr Khalil, the report of Dr Walden at T28, stated "He has no interest in working, but I do not actually think his dysthymia is of sufficient severity to prevent him working should he choose to do.  His capacity to work should be assessed on the basis of his physical conditions." 

5. It was further considered by the Tribunal that the definition in section 94(2) only permits the impairments to be considered in examining his inability to work. It excludes other factors which are not related to his impairment, for example his lack of English and the time he has spent out of the work force. The definition of continuing inability to work involves the satisfaction of both subsections 94(2)(a) and 94(2)(b). Mr Rababi was restricted to light work at the relevant time. The Tribunal found that his impairments did not at the relevant time prevent him undertaking light full-time work such as light process. Having regard to his evidence the Tribunal was minded that he considered he could work as a courier. Therefore, it was considered by the Tribunal that subsection 94(2)(a) was not satisfied. It was also considered that he would not have been prevented from participating in educational, vocational or on-the-job training at the time, and as such would not satisfy subsection 94(2)(b).
   CONCLUSION

6. The Tribunal's determination in relation to Mr Rababi's claim is that at the time of the claim for disability support pension he did satisfy the requirements of subsection 94(1)(a) and 94(1)(b), however he did not satisfy the requirements of subsection 94(2) (a) of the Act and does not have a continuing inability to work. Accordingly he does not satisfy section 94(1)(c) of the Act.

7. Accordingly, in all the circumstances and for the reasons set out above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal determines that the decision under review is affirmed. This means that the decision under review is unchanged.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms JA Shead, Member.

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

Date of Hearing  18 July 2001
Date of Decision  5 September 2002

Representative for the Applicant   Self

Advocate for the Respondent       Ms H Schuster