Raketic and Department of Family and Community Services - [2000] AATA 590

DECISION AND REASONS FOR DECISION [2000] AATA 590

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/0098

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

DECISION

Tribunal DR J D CAMPBELL

Date17 July 2000
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  (Sgd) Dr J D Campbell
  ….....................................
  Member
CATCHWORDS
Social Security – Disability Support Pension – Review – Assessment of Impairments – Cancellation.
Social Security Act 1991, Section 94, 100, Schedule 1B.

REASONS FOR DECISION

17 July 2000 DR J D CAMPBELL

Mr D Raketic ("the Applicant") in this matter seeks a review of the decision dated 17 December 1998 of the Social Security Appeals Tribunal which affirmed the decision dated 17 November 1998 of an authorised review officer. This latter decision affirmed an earlier decision dated 27 May 1998 made by a delegate of the Secretary, Department of Family and Community Services ("the Respondent") to cancel the Applicant's disability support pension.
A hearing was held before the Tribunal on 25 February 2000 at which the Tribunal was assisted by an interpreter fluent in the Serbian language. The self represented Applicant presented oral evidence to the Tribunal. The Respondent was represented by Ms Mantaring, an advocate from the Administrative Law section of Centrelink.
The following material was placed in evidence before the Tribunal
Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T59
Medical Report Dr Teo dated 21 February 2000           Exhibit A1
Medical Report Dr Law dated 1 June 1999        Exhibit A2
Medical Report Dr Law dated 15 February 2000          Exhibit A3
Medical Report Dr Teo dated 19 October 1999 Exhibit A4
Medical Report Dr Peduto dated 23 September 1999 Exhibit A5
Medical Report Dr Ho dated 27 September 1999         Exhibit A6
Respondent's Statement of Facts and Contentions dated 16 February 2000          Exhibit R1
1999 Medical Report Dr Elliot dated 14 February 2000           Exhibit R3
Medical Report Dr Elliot dated 7 December 1999         Exhibit R2

issues

The relevant issues in this matter are
(a) whether the applicant has a physical, intellectual or psychiatric impairment that is
     20% or more under the impairment tables in schedule 1B of the Social Security
     Act 1991; and
(b) whether the applicant has a continuing inability to work because the impairment
     of itself prevents the applicant from doing any work for at least 30 hours per week
     at award wages within the next 2 years; and either:
(i)    the impairment of itself is sufficient to prevent the applicant form
                undertaking educational, vocational or on the job training during the next
                2 years; or,
(ii)   because of the impairment, such training is unlikely to enable the
                applicant to do any work for at least 30 hours per week at award wages
                within the next 2 years.

legislation:

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1) - (5) and 100(3). These sections should be read with Schedule 1B which contains the tables for assessment of impairment for disability support pension ('Schedule 1B Impairment Tables').

background

The Applicant was granted an invalidity pension on 14 March 1977, with the date of effect being 20 January 1977 (T46, p148). On 13 December 1982 the Department of Social Security notified the Applicant that it intended to cancel his pension (T46, p157); this was affirmed by the Social Security Appeals Tribunal on 2 August 1983 (T46, p167); this latter decision was set aside by the Administrative Appeals Tribunal on 3 August 1985 (T45, p110). In a review process of his disability support pension, the Applicant was found to have only a 10 percent combined impairment rating and his pension was cancelled on 27 May 1998, last payment being on 9 July 1998 (T17, p58). This decision was set aside by an authorised review officer on 5 August 1998 pending the receipt of an independent medical specialist report (T30, p85). As a consequence of this examination, a delegate of the Respondent found that the Applicant's request for a review of the decision to cancel his pension was unsuccessful and his last pension payment would be made on 26 November 1998 (T35, p98). This decision was affirmed by an authorised review officer on 17 November 1998 (T40, p104) and by the Social Security Appeals Tribunal on 17 December 1998 (T2, p4).
evidence – the applicant
The Applicant told the Tribunal that he was born in Montenegro (Yugoslavia) on 20 October 1945 and, after finishing school and a trade course as a motor mechanic in 1966, he commenced working as a driver and then as a motor mechanic for one year. In 1970 he came to Australia where he worked as a labourer for two to two and half years, followed by undertaking formwork until 1975. In 1975 he injured his knee and his back at work for which he received no compensation and after which he has never worked. In 1976 he received a partial pension and, in 1978, a full invalid pension.
The Applicant, in stating that he had not done any work since 1975, told the Tribunal he spent the day visiting friends, watching television, going for walks or receiving visits from friends. Further, he lived at home with his wife and two of his four children. He confirmed that he cuts the grass, cleans around the house and sometimes washes the concrete, but he does not make the bed, clean or cook and only rarely does the shopping.
The Applicant described to the Tribunal a history of two motor vehicle accidents, one in 1979 and the other at a later date not able to be remembered. He received $6000 compensation for the later accident. Further, the Applicant described an incident where he fell from a ladder some three to four years ago and fractured seven ribs and punctured a lung. Similarly the Applicant described two past operations, namely, one to his knee in 1975 and the other to his back in 1976.
In describing his medical conditions and their associated clinical features to the Tribunal the Applicant detailed the following:
(a) Low back pain    Situated in the lower back posteriorly with radiation down both legs to knees and heels, which commenced straight after the operation. Cannot stand on one spot for longer than 20-30 minutes. Cannot bend. Can walk one kilometre slowly. Can climb stairs slowly and with difficulty. Can drive a car but experiences numbness in his right leg when driving over a long distance. Able to travel on public transport.
(b) Cervical Pain    Experiences pain in base of neck and shoulders. When sleeping gets pain in shoulders. Experiences frequent headaches since his car accident when he struck his head on the windscreen, rendering him unconscious for several hours and for which he was admitted to Auburn Hospital for 24 hours.
(c) Multiple pains     Experiences pains in bones all over his body for a long time, nominating arms, elbows and legs as pain sites.
(d) Right knee          X-ray and arthoscopy right knee 10 years ago. Experiences clicking in his right knee when walking and sometimes the knee collapses. Also experiences some pain in the left knee.
(e) Psychiatric Condition    Irritable, explosive, upset, easily annoyed, difficulty with sleeping, unable to work or be retrained because of his "nerves". Has fewer social contacts, but retains a good relationship with his children.
The Applicant told the Tribunal that he takes some analgesics three times a day and has been taking tablets for blood pressure for the last three months.
In response to questions asked in cross examination, the Applicant confirmed that he retains a current 5B truck licence, but at the time of the work accident he was employed doing formwork and was not truck-driving. Further he stated that he has driven on numerous occasions to Daylesford and Lightening Ridge for treatment in heated pools. On such activities he confirmed that he, with others, does the driving, that he is able to sit for one to two hours and they have many stops. In relation to later injuries, the Applicant stated that in relation to the fractured ribs, he fell from some scaffold some two to three metres above the ground when inspecting building progress and that, as regards the injury to his big toe, it resulted from a neighbour dropping a weight on it. Finally, the Applicant confirmed that he is able to travel on trains but experiences back pain when the train lurches and difficulty getting on and off as well as arising form the sitting position.
medical evidence:
In a radiological report dated 22 May 1996, Dr Christie, a consultant radiologist, stated that a plain X-ray of the Applicant's chest revealed multiple left-sided rib fractures and an extra pleural haematoma related to the fractures, as well as some calcified peripheralopacities in the right lung (T3, p8).
In a medical report dated 29 May 1996, Dr Chard, a consultant cardiothoracic surgeon, confirmed that the Applicant had fractured the fourth to the eighth ribs after a fall from scaffolding on 25 April 1996; that he had been discharged from Westmead Hospital on 8 May 1996; and that his fractured ribs were healing (T4, p9).
Further radiological reports dated 16 August 1996 and 29 January 1997 concluded that the healing process relating to the left rib fractures and lung inflation was progressing satisfactorily (T5 and T6).
In a review of his disability support pension in October 1997, the Applicant listed his illnesses/ disabilities as 'back, knee and ribs' (T7, p14). Dr Marinkovich, in his treating doctor's report dated 15 October 1997, described the Applicant's medical conditions and their associated clinical features as:
(a) Back injury       Low back injury. Constant low back pain, mild to moderately severe. Prolonged standing, walking and sitting aggravates already existing pain. Date of onset 17 May 1977. Long term and stable.
(b) low back, neck,       right knee, head     As above. Also pain in the knee and neck. Dizziness and vertigo. Date of onset 7 May 1989. Long term and stable.
(c) Anxiety and        depression        Reactive anxiety and depression, date of onset in 1989. Long term and stable.
Dr Marinkovich was of the opinion that the Applicant, due to his depression, age and low motivation would not be able to return to work for more than two years. (T8).
In a medical report dated 5 February 1998, Dr Fitzgerald, a medical adviser of Health Services Australia, summarised his opinion in the following manner:
This man was commenced on IP about 15 years ago. The papers provided today are various reports from that time indicating he had minor problems following a right medial meniscus operation and a laminectomy, plus two psychiatric reports not indicating major mood problems.
The client presented today and looked extremely fit and well. Some persons who have medial meniscus surgery go on to develop early onset of degenerative arthritis in the knee, however the client had no evidence what ever of any loss of function in the right knee. His only recent pain problem of note has been fractured ribs sustained when he fell from a ladder onto a concrete path in 1996.
With respect to his back, he has minor loss of mobility transfers easily, he takes no regular medication and could not recall the name of the medication he does take from time to time. With respect to the diagnosis of depression, he was unaware of this diagnosis, he does not take any medication does not have regular counselling from Dr Marinkovitch or any one else. His presentation was cheerful and ebullient, he and his wife had just returned form one of their frequent trips to "take the waters" at Daylesford, he also travels to Lightening Ridge for this purpose. Because of these inconsistencies I phoned Dr Marinkovitch twice and was assured he would return my call but despite this he has not called me back by the time of my having to leave at 5.30
This client has no evidence whatever of major or even moderate levels of disability, I consider him fit for light or moderate tasks on a full time basis. (T10, p41)
In his assessment of the Applicant's impairments, Dr Fitzgerald found that the Applicant had a loss of a quarter of the normal range of movement of the thoracolumbar spine, that there was no symptoms of referred limb pain or nerve root compression, that sitting, standing and transfer were all pain free; that he was able to work in light or moderate work categories; and that his impairment rating for his back condition was 10 per cent under table 5.2. In further opinion, Dr Fitzgerald was unable to find any abnormality relating to the cervical spine, right knee or the Applicant's mood (T10).
In a treating doctor's report dated 8 April 1998, Dr Mahony, detailed the Applicant's medical conditions and their associated clinical features as:
(a) Cervical strain almost certainly in association with degenerative changes
      with nerve root irritation affecting the upper limbs as a result of the motor
      vehicle accident in 1989. The condition is long term.
(b) A lower lumbar back pain in association with degenerative changes with
      nerve root irritation affecting the lower limbs particularly the right lower
      limb. The condition is long term.
(c)   Degenerative changes in both knees. The condition is long term.

Dr Mahony opined as a result of his consultation with the Applicant that he had very limited if any work ability and that he would not be able to return to work, either full or part time, for more than two years (T15, p53).

In a further treating doctor's report dated 12 June 1998 (T22), Dr Marinkovich detailed the following additional conditions and clinical features to his earlier report of 15 October 1997.
(a) Low back injury with right sciatica    Also right sciatic pain.
(b) Neck, low back, head and right knee injuries        Arose form Motor vehicle accident in 1989. Complains of pain in mentioned regions and this is aggravated by activities.
(c) Degenerative changes in both knees Osteoarthritic changes developed over a long period of time. Mild to moderately severe pain.
(d) Anxiety and Depression        No added clinical feature.
In a further treating doctor's report dated 15 June 1998, Dr Strinich listed the Applicant's medical conditions and associated clinical features as:
(a) Osteoarthritic changes of Increasing neck and lower back pain and
cervical and lumbar-sacral stiffness as well as painful knees over the last

spine and knees  few years due to osteoarthritic changes. Condition is long term and deteriorating.
(b)Fractures in left ribs (four to          Fell from scaffolding on 25 April 1996,
eight) and ruptured lung  fracturing the fourth to eighth left ribs and lung rupture. Still has dyspnoea and left chest pain. Condition is long term and stable.
(c)Old fracture injury, right big           As a result of heavy steel falling on his right
toebig toe, sustained a fracture to his right toe in October 1997. Still has pain and stiffness.

In general comment, Dr Strinich considered the Applicant unfit to return to either part time or full time work for more than two years and considered that the Applicant's work ability would be significantly impaired in relation to absenteeism, endurance, lifting and carrying, as well as alternatively between tasks. In other aspects, such as travel to and from work, manipulation of objects and interactions with others, Dr Strinich considered that the Applicant's ability would be mildly impaired to not impaired respectively (T22, p70-73).

In a medical report dated 21 October 1998, Dr Adler, a consultant in rehabilitation medicine, stated that examination of the right and left knees were normal and that the following investigations revealed,
Cervical Spine x-ray 22/09/98
There was only sight disc space narrowing at C5/6. This represents a mild level with degenerative change. Only marginal osteophytic lipping. There is no bony encroachment into the inervertebral foramina.
X-ray of Thoracic Spine
Slight scoliosis to right. There are mild degenerative changes with marginal osteophyte formation.
X-ray of Lumbar Spine 22/09/98
Mild degenerative changes are present with only slight disc space narrowing at L5/S1. I consider these changes to be essentially those that are normal for his age. There are mild degenerative change in the lower lumbar facet joint. (T33, p95)
As a consequence of his examination Dr Adler stated the following opinion:
I could find no evidence of any continuing injury or source of disability in respect of his left knee.
Mr Raketic has an extremely high level of purported disability in relation to his lower back and the examination findings essentially indicated a significant non-organic presentation. I could not find any objective evidence of lower back injury. There is little radiological evidence of any substantial lower back injury other than mild degenerative changes which are essentially consistent with his age. (Radiological studies of his lower back only indicate mild disc space narrowing at L5/S1 and similarly mild facet joint degenerative changes which would not explain his high level of purported disability).
They would not explain the high level of apparent spinal impairment which he presented with during examination.
I have no reasons to consider Mr Raketic unfit in respect of any employment. There is no verifiable low back or left knee condition currently present. He may have had injuries in respect of these areas in the past but these have long healed.
There is no occupational disability present.
Mr Raketic is certainly fit to manage factory process work, where there is little in the way of manual demands required, and this would be within his abilities in respect of his low English literacy. He would be fit to work in such duties in a full-time capacity. He is also fit to work as a truck driver. Should he choose he could work in van driving involving only small goods or truck driving without loading work where this is done mechanically in larger truck transport companies. (T33, pp95-96)
In a report on a MRI scan of the Applicant's right knee dated 23 September 1999, Dr Peduto, a consultant radiologist concluded
"Evidence of previous medical meniscal surgery with residual signal and irregularity in the residual meniscus. The changes are difficult to interpret and may represent mucoid/degenerative change but recurrent or residual tear cannot be entirely excluded. Mild degenerative changes in the knee and patellofermoral joint" (Exhibit A5)
In a report on a MRI Scan of the Applicant's lumbar spine on 27 September 1999, Dr Ho, a consultant radiologist, concluded that
At the L4/5 level, a degenerative canal stenosis is present. The disc shows a mild generalised bulging. There is degenerative facet arthrosis and hypertrophy. The L5/S1 disc is also narrowed and degenerate. There are changes of endplate spondylosis. There is retrolisthesis of L5 on S1, and is associated with a mild retrosomatic disc preclusion. (Exhibit A6)
In relation to a plain x-ray of the cervical spine, on 23 September 1999, Dr Peduto, concluded:
"Bony alignment is within the normal limits. There is spondylosis seen throughout the cervical spine with mild to moderate disc space narrowing particularly at L5/6 level…the exit foramina appear reasonably clear…" (Exhibit A5)
In a medical report dated 19 October 1999, Dr Teo, a consultant surgeon, stated that he had examined the Applicant on 7 September 1999 and made the following observations:

(a) Examination of the neck        Tender on palpation along the paraspinal muscle columns. Some limitation on forward flexion extension was two-third range; lateral flexion and rotation to the left two-third range; lateral flexion and rotation to the right in the one-third range.
(b) Examination of the back        Marked paraspinal muscle spasm. Forward lumbar flexion fingers to knee level extension one-third range; lateral flexion to right and left one-third range. Straight leg raising to 30 degrees with pain and tightness at the back of thighs.
(c) Examination of the right knee         Right quadriceps were smaller in volume. Some laxity in anterior cruciatic ligament. Tenderness or palpitation on the medial joint line.
Dr Teo considered the Applicant to be permanently disabled and unfit for work, and because of age, educational background, lack of English literacy, long absence from the work force and his emotional status, the Applicant could not be retrained for work. Dr Teo also made assessments of the Applicant's impairments against a set of permanent impairment tables, and later, in a letter dated 21 February 2000 under the Schedule 1B Impairment Tables. (Exhibit A4 and A1).

In a medical report dated 1 June 1999, Dr Law, a consultant psychiatrist, concluded
I think Mr Raketic suffers from a moderate to moderately severe degree of chronic anxiety disorder…I give him a rating of somewhere between 10 and 20 as far as his psychiatric condition is concerned, using Table (sic) 6." (Exhibit A2)
In a further report of 15 February 2000, Dr Law confirmed that the Applicant's psychiatric disorder had already been fully treated, investigated and stabilised (Exhibit A3).
Finally, in evidence the Tribunal was advised that the Applicant had been sent to see Dr Baz, a consultant occupational health physician, and that he had seen the doctor, but he was unaware as to where the report was.
submissions
The Applicant submitted that he had a number of physical and psychiatric impairments, namely cervical spondylosis, lumbar spondylosis, arthritic right knee and a psychiatric disorder (chronic anxiety state) and that the impairments had a combined assessment rate greater than 20 per cent under the Schedule 1B Impairment Tables. Further, it was contended that the impairments prevented him form working or undertaking training and/or vocational rehabilitation programmes and accordingly he had a continuing inability to work.
The Respondent submitted that in this matter the significant issue was the very variable assessments of the Applicant's impairments by the many and varied doctors. It was the Respondent's contention that while the Applicant had suffered injury in the past, the proper assessment of his impairments at the time in question resulted in a combined rating of less than 20 points. Accordingly, it was contended that the Applicant failed to qualify for disability support pension at the particular period in time.
In particular the Respondent submitted that the further file review opinions undertaken by Dr Elliot, a medical adviser at Health Services Australia, on 7 December 1999 and 14 February 2000, demonstrated the difficulties and apparent inaccuracies in the assessments given by Drs Teo and Law.
consideration and findings
The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) in part, and 94(2) - (5):
"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 of the
        Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any
               work within the next 2 years; and
          (b) either:
  (i) the impairment is of itself sufficient to prevent the person from
  undertaking educational or vocational training or on-the-job training
  during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking
educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
94(3)   In deciding whether or not a person has a continuing inability to work
         because of an impairment, the Secretary is not to have regard to:
(a) the availability to the person of educational or vocational training or on-the-
              job training; or
        (b) if subsection (4) does not apply to the person – the availability to the person
             of work in the person's locally accessible labour market.
94(4)   For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the
Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
94(5)   in this section:
          an 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:
  (i) that is for at least 30 hours per week at award wages or above, and
  (ii) that exists in Australia, even if not within the person's locally
   accessible labour markets.
Further, the Tribunal observes that subsection 100(3) of the Act focuses the Tribunal's attention on the period commencing with the cancellation of the Applicant's disability support pension and continuing for a period of three months ("the operative period"). Medical reports and opinions and other evidence existing prior to and after the adduced operative period can be used by the Tribunal only in circumstances where the material provides clarification or a better understanding of the impairments that existed during the operative period.
The Tribunal, having considered the Applicant's evidence, the various radiological reports, and the medical opinions expressed by Drs Marinkovich, Fitzgerald, Mahony, Strinich, Adler, Teo, Law and Elliot, all of which have been detailed in evidence, concludes that the Applicant had the following medical conditions in evidence during the operative period,
(a) cervical spondylosis;
(b) lumbar spondylosis;
(c) osteoarthritis in the right knee; and
(d) a Psychiatric condition.

In arriving at such a decision the Tribunal has paid particular attention to the various X-ray and MRI scan findings, the evidence of the Applicant and the reports of the various examinations undertaken particularly by Drs Fitzgerald, Adler, Marinkovich, Strinich and Teo, when defining the physical impairments. In relation to the psychiatric condition the Tribunal placed weight on the opinions of Drs Marinkovich, Fitzgerald, Adler and Law.
As a consequence of finding that such impairments exist, the Tribunal further finds that the Applicant satisfies subsection 94(1)(a) of the Act.
The Tribunal, in moving to an assessment of each of the impairments under the appropriate pre 1 April 1998 Impairment tables observes there has been a wide variation in the assessments made by the various doctors. The Tribunal, in making such assessments at the operative period, will place significant focus on the medical opinions and clinical examination findings by the various doctors leading up to the operative period and during the operative period as well as the radiological findings both before, during and after the operative period. The Tribunal, in assessing each of the impairments in tern makes the following findings of fact prior to nominating an impairment rating for each condition:

(a)Cervical Spondylosis the Applicant complains of pain at the base of neck (Applicant, Drs Marinkovich and Strinich) and this is aggravated by activities (Drs Marinkovich and Mahony). Mild level of degenerative change, more marked at L5/6 (X-rays 22 September 1998 and 23 September 1999). No loss of range of movement of cervical spine (Drs Fitzgerald and Adler).

As a consequence of these clinical findings, the Tribunal finds that the Applicant had a nil per cent impairment under table 5.1 of the Impairment Tables. The Tribunal, in reaching such a finding did consider the reports of Drs Marinkovich, Mahony and Strinich, but found each of them wanting for lack of definition of clinical findings at examination and a failure to particularise the impairment. Further, the Tribunal did consider the clinical findings of Dr Teo, but concluded that they were not overly relevant to the operative period, in that his examination was some many months after the operative period.

(b)Lumbar Spondylosis The Applicant complains of low back pain with radiation to limbs, particularly the right limb as far as the knee (Applicant, Dr Mahony) Aggravated by activities (Drs Marinkovich and Mahony) Mild to moderate level of degenerative change (X-ray of 22 September 1998 and MRI Scan of 27 September 1999). Loss of quarter range of normal range of thoraco lumbar movement (Dr Fitzgerald).

As a consequence of the findings the Tribunal finds that the Applicant has a 10 per cent impairment rating under table 5.2. Again the Tribunal has considered in full the reports of Drs Marinkovich, Mahony and Strinich and finds them deficient in the necessary clinical examination detail and the particular basis on which they have come to their conclusions. The Tribunal also notes the opinion of Dr Adler, where in expressing his opinion that he was unable to find any objective evidence of lower back injury, concluded that any examination findings essentially indicate a significant non-organic presentation. In considering Dr Teo's findings and opinions, the Tribunal again concludes that they were not directly relevant to the operative period and similarly the Applicant's evidence to the Tribunal that the pain radiated similarly down both limbs to the heels, was not congruent with findings during the operative period.

(c) Osteoarthritis in the right knee: clicking in the right knee when walking, with some pain (Applicant), which is increased by activities (Drs Mavinkovich, Mahony and Strinich). Minor degenerative changes (MRI Scan on 23 September 1999). No loss of movement or function of limb or abnormalities of knee detected at examinations (Drs Fitzgerald and Adler). Able to walk up to 1 Kilometre (Applicant).

The Tribunal finds that the Applicant has a nil per cent impairment rating under table 4 of the Schedule 1B Impairment Tables. The Tribunal did give consideration to the reports of Drs Marinkovitch, Mahony and Strinich, and found them deficient in detail to allow the Tribunal to make any meaningful use. The Tribunal also considered Dr Teo's report and again concluded that his findings were not directly relevant to the operative period.

(d)Psychiatric Condition: irritable, explosive, upset, easily annoyed, difficulty with sleeping, visits friends and friends visit his home, has good relationship with children (Applicant). Reactive anxiety and depression (Dr Marinkovich). No evidence of mood disorder (Dr Fitzgerald). No evidence of continued counselling during 1997/98. Did not see Dr Marinkovich for counselling sessions regularly.

The Tribunal in assessing this psychiatric condition finds that the Applicant had a nil per cent impairment under table 7 of the Schedule 1B Impairment Tables. In so finding the Tribunal concludes that there is a significant absence of clinical evidence, for example the Applicant's history, his ability to enjoy family and social relationships and the lack of any form of continuing counselling, to conclude that there is an ongoing psychiatric condition causing other than minimal symptomology. This is more likely in relation to everyday worries and problems. The Tribunal did note the opinion of Dr Law and concluded there was a range of clinical symptomology nominated that the Tribunal was unable to elicit from either the Applicant or other earlier medical reports. The rating suggested by Dr Law appeared to be derived from the post 1 April 1998 Impairment Tables and concerned Dr Law's opinion of the Applicant at the time of his consultation. The Tribunal is therefore unable to draw any relevance from the report that can assist in coming to its findings during the operative period.

The Tribunal in considering the issue of pain in this matter notes the presence of pain in the base of the neck, headache, joint pain both knees and referred pain to right leg more so than left leg at the operative time and finds that the Applicant had a five per cent impairment under table 6 of the Schedule 1B Impairment Tables. The Tribunal has also given consideration to any unusual pain that may have existed as a result of the injuries to the Applicant's left ribs and right great toe.
The Tribunal, in finding that the Applicant has a combined assessment rating of 15 per cent for the impairments nominated, concludes that the Applicant does not satisfy subsection 94(1)(b) of the Act.
The Tribunal in undertaking an assessment of whether the Applicant has a continuing inability to work is doing so for the purpose of completeness. The Tribunal recognises that the Applicant does have restriction in relation to bending and lifting arising form his impairments and further that the Applicant has a range of non medical issues which will impede his ability to obtain work. The Tribunal notes that the latter non-medical issues feature highly in the consideration of Drs Marinkovich, Mahony and Teo. Dr Strinich apparently relied on conditions, namely the Applicant's fractured left ribs right great toe), which the Applicant places much less emphasis in his discussions with other doctors. The Tribunal, in finding that the Applicant does not have a continuing inability to work, relies upon the clinical examination and opinions of Drs Fitzgerald and Adler, as well as the Applicant's detailing of the many activities he is able to undertake including significant car journeys on numerous occasions to Daylesford and Lightening Ridge, as well as climbing onto scaffolding and his ability to walk, drive and use public transport. The Tribunal concludes that there are a range of light to moderate work categories in which the Applicant could work within the next two years.
The Tribunal in similar consideration of the same reasons finds that the Applicant's impairment will not prevent him from undertaking vocational or educational or on the job training during the next two years, and once having completed such programs, his impairments will not be likely to prevent him from working within the next two years.
As a consequence of these findings, the Tribunal concludes that the Applicant, in failing to meet the requirements of subsection 94(1)(c), by virtue of not satisfying the requirements of subsection 94(2)(a) and 94(2)(b)(i) and (ii), failed to satisfy the qualification for a disability support pension at the operative time.
determination
The Tribunal affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed:         .....................................................................................
  Associate
Date of Hearing  23 February 2000
Date of Decision  17 July 2000
Solicitor for the Applicant Self represented
          Solicitor for the Respondent   Ms Mantaring