Rekhi and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 202

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/260

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

DECISION

Tribunal Mr J. T. C. Brassil, AM, Member

Date16 March 2001
PlaceMelbourne

Decision The Tribunal decides to affirm the decision under review.

..........(Sgd) J. T. C. Brassil.........
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – impairment points - a continuing inability to work – decision affirmed
Social Security Act 1991 ss 94(1)(a), 94(1)(b), 94(1)(c)

REASONS FOR DECISION

16 March 2001 Mr J. T. C. Brassil, AM, Member

This is an application for review of a decision made by a delegate of the respondent on 22 September 1999 to reject the application of Jaswinder Singh Rekhi for a disability support pension (DSP). An authorised review officer affirmed that decision on 27 October 1999 and on appeal to the Social Security Appeals Tribunal the rejection was affirmed on 19 January 2000.
The applicant was present at the hearing on 8 September 2000 and was represented by Mr Anspal Singh. The respondent was represented by departmental advocate Mr Terry Baker.
Documents submitted pursuant to section 37 of the Administrative Appeals Act 1975 were taken into evidence. Also taken, on behalf of the applicant, were reports from Dr Gul Keng, dated 21 August 2000 and 7 September 2000, from physiotherapist Mr Suresh Takvar dated 15 August 2000, from Melbourne Diagnostic Imaging Group dated 16 August 2000, an appointment notice with Dr Gul Keng for 11 September 2000 and a list of 12 treatments undergone by the applicant. On behalf of the respondent there were tendered two reports, the first from Dr W. A. Kemp, occupational physician, dated 26 June 2000 and the letter attached to that report from Dr B. Harries of Health Services Australia, dated 29 June 2000.
Facts
The applicant came to Australia in 1975, worked as a farm labourer, then in a factory where he was promoted to foreman until 1984 when he was employed by the Public Transport Commission (PTC). With the PTC he was a bus conductor, then for various periods a tram driver and a bus driver.
The applicant has had back pain since 1987 but it was exacerbated by an accident in 1994 when he attempted to prevent his bus from rolling on to another bus in the depot.
After the accident he was on Workcover for 6 months and since then he has undergone a wide range of treatments. After a period he had returned to work at the PTC on light duties.
When the PTC was privatised in 1999 he was suffering worsening pain and felt he could not continue, there was no work made available to him hence he accepted a redundancy package offered to him. He ceased work on 3 July 1999 and has not worked since.
In the years following his accident Mr Rekhi has been treated by his general practitioner, by physiotherapists including with massage and pool exercises, a psychiatrist and an orthopaedic surgeon. In addition he has used natural medicines and had treatment by an acupuncturist. Evidence was given of 12 kinds of treatment undergone by the applicant in this period (Exhibit A5).
There was agreement that the applicant could not return to his former occupations either as a bus driver or a tram driver.
The respondent conceded that Mr Rekhi has lumbar spondylosis and disc lesions which result in intermittent pain in the lower back. He has therefore a physical, intellectual or psychiatric impairment.
Issues before the Tribunal
As the respondent has conceded the applicant has an impairment the Tribunal must consider from the medical evidence whether he has an impairment with a rating of at least 20 points under the Impairment Tables and then whether he has a "continuing inability to work".
Legislation
The Social Security Act 1991 ("the Act") regarding the qualifications for a DSP provide as follows:
"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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health department, stating the period for which the person is to participate in the system; and
(d)       …
…
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 during the next two years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training over 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."

In subsection 94(5) "work" is defined as:

"94(5) In this section:
…
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."

At Schedule 1B of the Act are found the relevant Impairment Tables referred to in subsection 94(1)(b) and the relevant table is Table 5.2.
Evidence
In his report of 7 September 2000 (Exhibit A1) Dr Gul Keng, orthopaedic surgeon, stated that the applicant's impairment was such that "he is totally incapacitated and as a result of this he is unable to work". He also said "I have assessed him according to Centrelink Table and assessed his disability is to the extent of 20 per cent and is unable to do any type of work". While it was not clear what Dr Keng meant by "20 per cent" according to the Centrelink Table he did go on to say that in respect to the disability of his thoraco-lumbar spine he had lost about half of the normal range.
Further Dr Keng stated that clinically the applicant has "a neurological deficit with a nerve root impingement and as a result of this he can not work, he can not stand for more than 15 minutes and he can not sit for 15 minutes". He expressed the view that there would be a need for surgical intervention. This was also referred to in a prior report dated 21 August 2000 (Exhibit A2) where Dr Keng described the intervention as "laminectomy and excision of the disc". Also in evidence was submitted an appointment notice showing the applicant was to see Dr Keng again on 11 September 2000. He had requested WorkCover to approve the operation which he considered necessary.
Dr Keng referred also to his belief that the applicant could not do any training "as he is unable to sit or stand for a long period of time". He said the applicant was "totally incapacitated and should be on an invalid pension" which was understood to be a reference to the DSP.
Attached to Exhibit A2 was Dr Keng's assessment under the AMA tables for injuries to the spine as a total whole body assessment of 24%.
In both reports Dr Keng stated the applicant was obviously depressed but he could not give an assessment for that aspect of his health.
A report dated 15 August 2000 (Exhibit A3) from Mr Suresh Takvar, treating physiotherapist and occupational therapist, stated that the applicant was in continuing pain because of the condition of his lower back resulting in limited sitting and lifting tolerance. The view was expressed that he was unfit for work requiring lifting, bending. He needs continued physiotherapy and hydrotherapy.
Mild spondylosis at C6/7 was reported on 16 August 2000 by the Melbourne Diagnostic Imaging Group (Exhibit A4).
The applicant's treating doctor, Dr I. Arora, on 23 August 1999 reported (T9) that his patient was not fit to drive trams and not fit for any labour intensive job with heavy lifting or frequent bending involved. He stated the applicant could benefit from rehabilitation to retrain himself in a different field.
The applicant gave evidence that he went to the physiotherapist once a week and goes for a massage at least once per week. He sees Dr Keng about once a month and his treating GP more often, particularly when he is pain. He takes Panamax for this pain. On the advice of his physiotherapist he tries to walk regularly around the block but sometimes it is only around his home because that is all he can manage.
Dr W. A. Kemp, a rheumatologist experienced in occupation medicine, in his report of 26 June 2000 (Exhibit R1) stated:
"In my opinion he has clinical and radiological features consistent with lumbar spondylosis and disc lesions at L4-5 and the lumbo-sacral levels. His condition is long-standing and stable, but he still has intermittent low back pain while sitting or standing still and I would consider that he is permanently unfit to resume as a Bus or Tram driver."
Finally Dr Kemp states:
"In my opinion he would probably be fit for light non-manual work where he could sit or stand and move around at his will. He is now 46 years of age and rehabilitation with re-training would be appropriate."
This view is noted by Dr B. Harries, Senior Medical Adviser at Health Services Australia, in her accompanying report dated 29 June 2000 (Exhibit R2). She notes that this is consistent with the view expressed by Dr Bisas (T10) and she believes on the basis of Dr Kemp's report the impairment rating given by Dr Bisas of 10 impairment points is entirely appropriate.
Submissions
Mr Singh, on behalf of the applicant, submitted that the evidence of Dr Keng was clearly that Mr Rekhi was not able to resume his previous occupation, that he was totally incapacitated and should be on what he called an "invalid pension". He had stated that the applicant would not be able to undergo training for other lighter work as he could not sit or stand for a long period of time.
Dr Keng had said that the applicant had lost half normal movement and this should be sufficient to determine that Mr Rekhi had the required 20 impairment points under the appropriate Impairment Table. This would mean that if he had a continuing inability to work then he was qualified for the DSP for which he had applied.
The applicant could not, because of his impairment, undergo any training, according to Dr Keng, hence within two years, or any number of years, he could not possibly receive educational, vocational or on-the-job training which would permit him to be employed even on light non-manual work. He submitted that the work envisaged would be professional, perhaps as a doctor, and the applicant did not have the educational background for such training which would be longer than two years in any case.
On behalf of the respondent Mr Baker submitted it was not a clear case that the applicant had 20 impairment points. Dr Bisas had assessed only 10 points and Dr Kemp did not clearly evaluate the number of points but, in her opinion, Dr Harries did not interpret Dr Kemp's opinion as being different from the assessment of Dr Bisas.
But even if the applicant was assessed as 20 impairment points Mr Baker submitted that there was not sufficient evidence of continuing inability to work. Clearly on the medical evidence the applicant could do some light non-manual work or could within a period of two years be trained to do it.
Even the applicant's GP, Dr Arora, had said (T9) that the applicant could benefit from retraining even if he could not do labour intensive jobs. That could only be a statement supporting the view of other doctors that other work which did not require lifting, bending or sitting or standing for long periods would be possible after retraining.
This was agreed also by Dr Kemp and Dr Bisas of Health Services Australia stated that "the objective findings are consistent with residual work capacity" (T10).
Mr Baker agreed there was little before the Tribunal directly helpful in determining whether suitable training in the two year period would provide the applicant with work he could do but there was clear medical evidence that he could be expected to do work appropriate to his disability and no hurdles to retraining were stated or envisaged.
It was the submission of the respondent that the applicant did not have the necessary 20 impairment points but even if this was the view of the Tribunal then the DSP should be denied because the applicant could not show he had a continuing inability to work pursuant to the provisions of the Act.
Consideration of the Issues
The first issue for consideration is whether the applicant can be assessed as having 20 impairment points. It is probably the view of Dr Keng, not made clear in the evidentiary material, that this was the case even without any contribution from his psychiatric condition. The medical assessment of Dr Bisas and Dr Harries was that 10 points was the appropriate assessment while Dr Kemp did not give a firm opinion.
Dr Keng has stated that the applicant has only half of the normal movement and in doing so has provided a direct opinion which when viewed against the requirements of Table 5.2 would lead to a conclusion that the applicant had 20 impairment points. In the circumstances the Tribunal accepts that 20 impairment points are an appropriate assessment of the applicant's disability.
There are conflicting views in regard to the applicant's "continuing inability to work". There is agreement that he will never be able to return to his pre-injury employment as a bus driver or as a tram driver.
As Mr Baker stated there was not a lot of evidence before the Tribunal that would help in determining whether educational, vocational or on-the-job training could in two years put the applicant in a position in which he could work 30 hours per week at award wages as is required.
While most of the doctors, including the treating GP, Dr Arora, have expressed views that the applicant could benefit from re-training these opinions have to be weighed against that of Dr Keng who says he cannot do any training because he cannot sit or stand for any period of time. Although Dr Keng was recommending surgical intervention there was no evidence of how a successful intervention would affect the applicant or his likely capacity to participate in or benefit from re-training
No evidence was before the Tribunal regarding the training that was available and whether the applicant's impairment could be accommodated in some specific training process. On the other hand the submissions on behalf of the applicant gave no more than a generalised opinion on training that may have been available as not being able to assist the applicant. It would have been of assistance to the Tribunal if there were some evidence of any attempt to be trained by the applicant that had failed because of the impairment.
The requirements of the legislation to prove a continuing inability to work may appear harsh to a person suffering continuing pain and unable to sit or stand for long periods but the Tribunal must decide, on the evidence before it, whether on the balance of probabilities some form of training during a period of two years could put the applicant in a position where he could earn award wages working 30 hours per week.
Conclusion
There are three requirements for the applicant to qualify for a DSP, having an impairment, being assessed at 20 points and showing a continuing inability to work as defined by the Act. The first qualification was conceded and the Tribunal has found in favour of the applicant on the second qualification.
However after consideration of the particular circumstances of this case, on the balance of probabilities, the Tribunal pursuant to the requirements of the Act is not convinced of the applicant's continuing inability to work and thus finds that he was not entitled to a DSP at the time he made this application.
I certify that the forty-three (43) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. T. C. Brassil, AM, Member
Signed:         ....Lou Coffey.......................................
  Personal Assistant
Date/s of Hearing  8 September 2000
Date of Decision  16 March 2001
Solicitor for the Applicant         Mr A. Singh, Vincent Verduci & Associates
Solicitor for the Respondent    Mr T. Baker, Centrelink

[2001] AATA 202

16 March 2001

Key Legal Topics

Areas of Law

Administrative Law

Social Security Law

Legal Concepts

Administrative Decision-Making

Impairment Points

Continuing Inability to Work

Social Security Act 1991