Ryan; Secretary, Department of Employment and Workplace Relations

[2006] AATA 858

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 858

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/294     

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And MICHAEL RYAN

Respondent

DECISION

Tribunal Senior Member M. D. Allen

Date6 October 2006

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/763     

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And MICHAEL RYAN

Respondent

DECISION

Tribunal Senior Member M. D. Allen

Date6 October 2006

PlaceSydney

DecisionFOR the reasons given orally at the conclusion of the hearing, pursuant to subsection 29(7) of the Administrative Appeals Tribunal Act 1975, it is ordered that the decision under review is AFFIRMED.

[Sgd] M.D. Allen

Senior Member

CATCHWORDS

Grant of Disability Support Pension – Whether a physical, intellectual or psychiatric impairment is present – Whether an impairment of at least 20 points exists – Whether there exists a continuing inability to work.

Social Security Act 199: ss 94(1), 94(2)

Secretary, Department of Social security v Pusnjak (1999) 56 ALD 444

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Pollock  v Wellington (1996) 15 WAR 1

McDonald v Director-General of Social Security (1984) 1 FCR 354

REASONS FOR DECISION

6 October 2006     Senior Member M.D. Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefore were stated orally. After service upon the Respondent and the Applicant, through their solicitors, of a copy of the decision that was in fact made, the Respondent, pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to him a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reason for the said decision.

3.      The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reason for the Tribunal’s decision. 

I certify that this and the preceding pages are true copies of the decision and reasons for the decision herein of:

Senior Member M. D. Allen

Signed:  …………………………………………………

Associate

Dates of Hearing  21 September 2006
Date of Decision  6 October 2006
Solicitor for Applicant   Maclarens Lawyers
Counsel for Applicant   Mr. John Watts
Advocate for the Respondent       Mr. Alan Duri

O/N 27213

DRAFT DECISION  [10.03am]
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2006/628 
By MR M.D. ALLEN, Senior Member
DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS and RYAN
SYDNEY, 22 SEPTEMBER 2006

MR ALLEN: By application made 20 March 2006 the applicant sought review of a decision made by a Social Security Appeals Tribunal on 9 February 2006 setting aside a decision by a delegate of the applicant cancelling the respondent's Disability Support Pension. So far as is relevant the criteria for the grant of a Disability Support Pension are set out in section 94 of the Social Security Act 1991 (as amended) and read:

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 impairments tables; and

(c)       One of the following applies:

(i)        The person has a continuing inability to work.

Subsection (2) of section 94 then goes on to define the meaning of "continuing inability". It reads, inter alia:

A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a)       The impairment is, of itself, sufficient to prevent the person from doing any work within the next two years; and

(b)       Either:

(i)        The impairment is, of itself, sufficient to prevent the person from undertaking educational or vocational training or on the job training for the next two 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 two years.

Subsection (3) imports further restrictions, namely that:

In deciding whether a person has a continuing inability to work because of an impairment the secretary is not to have regard to the availability to the person of the educational, vocational or on the job training, or the availability of work in the person's locally accessible labour market.

The manner in which section 94 should be applied was set out by Drummond J in Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 452. I do not regard it as necessary for these reasons to reiterate what his Honour said.

Further, as was pointed out by Senior Member Bedoe in Secretary to the Department of Social Security v Bustria, unreported AAT decision Q97/356 10 December 1997, where the rated symptoms of a disease reach a 20 impairment points threshold the unrated symptoms of the disease may also be considered when considering impairment within subsection (2) of section 94. Similarly, once an impairment rating of 20 impairment points has been obtained, unrated injuries and diseases can be examined to ascertain how their symptoms and signs might affect a person's continuing inability to work.

Following the decision of the Social Security Appeals Tribunal there have been further investigations and reports regarding the respondent's degree of impairment and ability to work.  In his statement of facts and contentions the applicant conceded that the respondent had an impairment rating of 20 points.  The applicant also conceded that at present the respondent has a work capacity between 15 and 29 hours, that is, that he currently does not have the ability to work 30 hours a week.

The criteria of 30 hours is important because in section 94 subsection (5), "work" is defined to mean work that is for at least 30 hours per week at award wages or above. The applicant's case is that the respondent would have a work capacity of more than 30 hours a week within 6 months with educational, vocational or on-the-job training.

The respondent is currently 48 years of age.  He left school at age 14 years 11 months having reached second form standard.  He states that he failed maths and English at school and currently his reading ability is not good.  Immediately upon leaving school the respondent was employed as a labourer in a brick pit stacking bricks.  At around age 18 he began riding motorcycles professionally and continued this until age 35 when he ceased due to the effect of various injuries received as a bike rider.  The bike-riding activities of the respondent were as a dirt track rider, that is to say a speedway rider, not to be confused with circuit bike racing. 

Having ceased bike riding the applicant lived on his own savings for a couple of years but then applied for and was granted the Disability Support Pension.  I note that this grant of a Disability Support Pension was reviewed in 2003 and the pension continued.  The treating doctor's report at that time stated that the applicant was unable to work.  On 3 June 2005 the respondent was advised that his Disability Support Pension had been cancelled with effect from 6 May 2005 because of failure to report earnings.

The respondent reapplied for Disability Support Pension but this then led to further examination as to his degree of impairment and on 21 July 2005 his Disability Support Pension was cancelled.  At the time his Disability Support Pension was cancelled the respondent was working 20 hours a week as a forklift driver.  He had found that job himself after advertising in a local newspaper as being available for some work.  Since the original decision that employment has been terminated.  The respondent is of the opinion that the termination was brought about by his working too slowly or for making mistakes in driving the forklift and handling goods.  Those mistakes were brought about by his making bad decisions as a result of taking painkillers.

The applicant was able to work 20 hours a week by relying on analgesics.  He had been offered extra work but had to refuse as he knew he could not cope.  In addition to impairments resulting from lower back pain and right ankle pain, which had been given an impairment rating of 20 points, the applicant suffers from right wrist pain, tinnitus, left shoulder dislocation, depression and irritable bowel syndrome.  Although I am not required to do so, had it been necessary I would have accepted the respondent's depression as being treated, permanent and stabilised, given the reports of Drs Anamuttu, Gobran and Chowdhury.

In any event, it is clear that his depression and irritable bowel syndrome are having a not immaterial effect upon his ability to work and to receive instruction.  In passing I state that I agree with the Social Security Appeals Tribunal in assessing the respondent as having a 10 per cent impairment resulting from irritable bowel syndrome.  At paragraphs 50 and 51 of their decision the Social Security Appeals Tribunal said:

The Tribunal next looked at whether Mr Ryan has a continuing inability to work.  The Tribunal finds that Mr Ryan, because of his various impairments, has difficulty in working in his present job for 20 hours per week even though his job is within a short distance by car from his home.  Currently he does very little in a day beside working for four hours per day for five days a week in a job where he does not have much walking or weight bearing on his right foot, can avoid using his right wrist and can change positions frequently if he needs to because of his back.

Even with this job, which he has managed to do for the last two years, and working at the ideal time of the day for his medications to have given him the most freedom in his arthritic joints, he is still able to do very little in the day beside the four hours work.  The Tribunal accepts that he could not do 30 or more hours per week whatever the job.  He satisfied section 94(2)(a) of the Act.  The Tribunal notes that Centrelink on 30 May 1996, on checking the CRS Parramatta file in 1995 or 1996, concluded that "Mr Ryan was not suitable for training and any training provided would not equip him for full‑time work within two years".

On this finding and the medical finding of Dr Graudins he was granted a Disability Support Pension.  I note that almost 10 years have passed since Centrelink made that decision.  Mr Ryan claims, and his treating doctors agree, that his arthritis in his right ankle and wrist are worse than they were at the time he was granted the Disability Support Pension and he has the added conditions of depression and irritable bowel syndrome.

With Mr Ryan's difficulty in reading and writing and his poor learning ability from written or oral teaching, but his ability to learn better by observation, he would not be suitable for a clerical job.  I accept that Mr Ryan may be able to learn from on the job training with an understanding teacher but even with such training he is unlikely to get a job more suited to his disabilities than his current forklift driving and moreover he would still not be able to work for 30 hours or more per week. 

He finds that working for four hours per day, even though his right wrist and ankle are used minimally and he does not have to lift and change positions as he needs on his forklift truck, causes him considerable discomfort from which he takes hours to recover.  I doubt that Mr Ryan could find a job more suited to his current medical restrictions than the job he has of a forklift driver and he has not been able to increase his work in that job in the two years he has been working.

I accept that Mr Ryan satisfies sections 94(2)(b)(ii) and section 94(2)(b)(i) of the Act in that he would not be able to spend 30 hours or more per week while in a learning situation or in a full time job from that on the job training. Exhibit A4 is a work capacity assessment by a Rachel Shipton whose qualifications are those of a physiotherapist. I doubt whether Ms Shipton's qualification permits her to be described as an expert regarding a person's ability to undertake work especially where psychiatric illness is a factor.

Likewise, she has not revealed in her report any qualifications which would permit her to comment upon the respondent's intellectual ability to undertake training.  At paragraph 14 page 10 of her report, Ms Shipton states:

Vocational rehabilitation services may assist customer upgrade to 30 plus hours per week in his current position -

and continued:

Vocational rehabilitation services may assist customer to identify alternative suitable work options.

The emphasis in those passages needs to be on the word "may".  Apart from the qualification of "may", no specificity is given regarding the proposed vocational rehabilitation services.  So far as the suggested employments at paragraph 14 are concerned, having regard to the respondent's current disabilities and level of education and experience, I do not regard them as viable.

The respondent was able to work as a forklift driver for 20 hours maximum with difficulties.  To suggest, with his level of education and experience, he could be a motorcycle salesman is risible.  So far as a car park attendant is concerned, he has neither the physical capacity nor the numeracy.  But in any event, Ms Shipton has not evidenced any investigations of the respondent's intellectual abilities to undertake training.  From my observation of him he is, whilst being an honest and well‑motivated person, not capable of undertaking further education or vocational activity or training.  That is by reason of his intellect.

Dr Glixon has qualifications in occupational medicine.  He makes the bald statement in his report of 19 June 2006:

It appears that Mr Ryan would be able to undertake vocational retraining for 30 or more hours per week within the next two years.

No evidentiary basis is given for this bald statement and I reject it.  The respondent's counsel referred to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, especially at 733 paragraph 68. However, I consider that the best reference to Dr Glixon's assertions is at paragraph 81 of the judgment of Heydon J, see page 741. There his Honour said:

In Pollock v Wellington (1996) 15 WAR 1 at 3, Anderson J said:

Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts.

He then said, pages 3 and 4:

As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based.  A court ought not to act on opinion the basis for which is not explained by the witness expressing it.  None of these requirements is satisfied when all the medical expert says is: "I have examined this patient and from what I know about plant operation I think he can drive a D10 bulldozer on production work."

Heydon J continued:

He also said, page 4:

Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion could carry no weight.

In 1996, prior to the grant of his Disability Support Pension, Commonwealth Rehabilitation Services Parramatta concluded that the respondent was not suitable for training and that any training provided would not equip him for full time work within two years.  There has not been one scintilla of real evidence as opposed to opinion to show that that conclusion by the Commonwealth Rehabilitation Services was wrong or has changed.

As pointed out by Jenkinson J in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 369, if at the end of the evidence the Tribunal remains unpersuaded that a circumstance exists then the status quo remains. In this matter the respondent was in receipt of a Disability Support Pension which was cancelled by the applicant. That pension was restored by the Social Security Appeals Tribunal for reasons I consider to be totally correct. There is no evidence before me which persuades me that the decision to cancel the applicant's Disability Support Pension was the correct or preferable decision. Consequently the decision under review is affirmed.

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