Ryzak and Department of Family and Community Services - [2000] AATA 631

DECISION AND REASONS FOR DECISION [2000] AATA 631

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/801

GENERAL ADMINISTRATIVE DIVISION          )
           Re      BOGUSLAW CZESLAW RYZAK
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal S M Bullock , Member

Date1 August 2000
PlaceSydney

Decision The decision under review is affirmed

[Sgd] Ms S M Bullock
Member
CATCHWORDS
Social Security – disability support pension – impairment rating – continuing inability to work

Social Security Act 1991 s94

Re Pusnjak and Secretary, Department of Social Security (1998) (AAT 12944, 26 May 1998)
Secretary, Department of Social Security v Pusnjak (1999) FCA 994
Secretary, Department of Social Security v Goudge (1989) 17 ALD 415
Re Lawson and Secretary, Department of Social Security (1997) 2 (12) SSR 169
Re Sherer and Secretary, Department of Social Security (1997) (AAT 12207, 12 September 1997)
Re Secretary, Department of Social Security and Davis (1998) (AAT 12563, 27 January 1998)

REASONS FOR DECISION

S M Bullock, Member

This is an application for review by the Applicant, Mr Boguslaw Czeslaw Ryzak, of a decision of the Social Security Appeals Tribunal (the "SSAT") which decided on 26 November 1998, that Mr Ryzak 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 25 August 1998 (T17). The original decision to reject Mr Ryzak's claim for Disability Support Pension was made on 22 July 1998, by a delegate of the Department of Family and Community Services.
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Sydney on 23 March 2000. Mr Ryzak provided oral evidence to the Tribunal and was assisted by an interpreter in the Polish language. The Respondent in this matter, 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      Letter from Dr J M Knapik, General Practitioner.          15 November 1999
R1      Statement from Mr L Murnane, Disability Services Officer, Katoomba Centrelink office.   28 October 1999
R2      Description of Job Network Member, "Global Skills" of Penrith with attached example of possible, suitable position for Mr Ryzak.
R3      Computer print outs Payment summary, Newstart Allowance for Mr Ryzak Activity type Medical condition details    24 November 1999 to 29 March 2000 21 March 2000 28 February 2000 to 27 May 2000 1 December 1999 to 28 February 2000 1 September 1999 to 30 November 1999 1 June 1999 to 31 August 1999 1 March 1999 to 31 May 1999 1 December 1998 to 28 February 1999 11 August 1998 to 10 November 1998 29 July 1998 to 31 August 1998 22 September 1997 to 28 February 1998
R4      Respondent's Statement of Facts and Contentions.     28 February 2000
R5      Map of the Leura, Wentworth Falls area.
R6      Computer printout – archive in display regarding Mr Ryzak's employer, Eurocrane.         19 August 1997

legislation

A determination of this matter requires consideration of the provisions of the Social Security Act 1991 ("the Act") and specifically section 94 of the Act which deals with Disability Support Pension.
Section 94 of the Act as it is applied at the time states:
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;
Subsection 94 (2) of the Act deals with continuing inability to work and as relevant states:
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.
Of relevance also are subsections 94(3),(4) and (5) of the Act and as relevant they state:
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.
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.

In this section:
education 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.

issues

There is no dispute between the parties that Mr Ryzak satisfies subsection 94(1)(a) in that he has a physical disability.
There is also no dispute that Mr Ryzak meets the provisions of subsection 94(1)(b) in that he has an impairment rating of 20 points or more obtained from the Impairment Tables contained in Schedule 1B to the Act.
Therefore, the only in issue in dispute is whether or not Mr Ryzak has a continuing inability to work because his physical condition alone prevents him from undertaking any work for at least 30 hours per week at award wages within the next two years; and either:
1. the impairment is of itself sufficient to prevent Mr Ryzak from undertaking
     educational, vocational or on-the-job training during the next two years; or
2.because of his impairment, such training is unlikely to enable Mr Ryzak to
undertake any work for at least 30 hours per week at award wages within
the next two years.

background

The following information is provided by way of background and the material contained herein is not in dispute.

Mr Ryzak was born on 21 November 1959 in Poland and came to Australia on 22 May 1982 (T21).
Mr Ryzak was married on 3 March 1978 and has two dependent children living at home, Martin, (Date of Birth 25 July 1982) and Larysa, (Date of Birth 11 October 1989) (T21, p92).
On 25 January 1994, Mr Ryzak had a serious injury at work, falling three to four metres from a crane and injuring his left foot and left wrist (T7, p35).
On 26 January 1994, Mr Ryzak had surgery to his left wrist and on 2 February 1994 further surgery to his left ankle (T7, p35).
Dr R A Elliott, Orthopaedic surgeon, reported on 31 January 1995 that:
"This man has been involved in a severe fall which caused intra-articular fractures of the left calcaneum and left radius. The joint surfaces of both joints have been severely damaged and it is highly probable that he will develop degenerative arthrosis in both his left wrist and subtalar joint. If pain becomes a problem in either joint then possible arthrodesis may be needed. Hopefully this can be avoided. I would like to review him in about four months time to assess the state of his joints and also to give a final assessment of his problems. As outlined above, I do not think he will return to his pre injury job." (T7)
Mr Ryzak ceased work in late 1997.
On 10 July 1998, Mr Ryzak lodged a claim for Disability Support Pension in respect of multiple fractures to the left foot and left hand (T20, T21).
On 20 July 1998, Mr Ryzak was assessed by a Health Services Australia Medical Officers Dr S Kervison, who opined that Mr Ryzak is an intelligent man, who speaks excellent English, as well as being able to read and write English. Dr Kervison considered Mr Ryzak was fit for a range of duties for up to 30 hours per week, including as a clerk, courier, light process worker, and caretaker. With training, Dr Kevison opined that Mr Ryzak would be able to undertake duties in positions such as an electronic repairer or a computer repairer (T12). Dr Kervison assessed Mr Ryzak as having a five per cent impairment for his left wrist from Table Three of the Impairment Tables and at a ten per cent impairment for his left ankle from Table Four, providing a combined impairment rating of 15 per cent (T12).
On 22 July 1998, Mr Ryzak's claim for Disability Support Pension was rejected (T16). Further medical reports were provided by Mr Ryzak and these were referred to a Health Services Australia Adviser for review. On 28 July 1998, Health Services Australia advised that the additional information did not cause the medical officer to change the assessment of 15 per cent impairment (T14, p62).
Mr Ryzak sought a review by an ARO and on 25 August 1998, was advised by R. Bombell, the ARO, that the decision not to grant a Disability Support Pension was affirmed (T17).
On 1 September 1998, Mr Ryzak appealed to the SSAT for a review of the ARO's decision. On 26 November 1998, the SSAT affirmed the decision of the ARO but decided that the impairment rating should be increased to 25 points made up of 20 points for the left foot from Table Four and five points for the left wrist from Table Three, contained in Schedule 1B to the Act of the Impairment Tables.
Even though the SSAT had increased the combined impairment rating for Mr Ryzak's medical conditions, it still considered that he had the ability to undertake light duties work within the next two years and also he could be retrained for such light duties within the next two years (T2).
On 26 May 1999, Mr Ryzak lodged an application for review to the Tribunal noting;
"…I think the decision is wrong and a different decision should be made.
The level of my disability was decided on 25% which is up 10% on the level set by Commonwealth Doctor. The decision also states that I am capable of retraining. This is the part I do not agree with. At present I have a doctors (sic) certificate and according to the doctor I have very little chance of returning to work." (T1, p3)

evidence of mr ryzak

Mr Ryzak told the Tribunal he attended school in Poland, until the age of approximately 19 years. From the equivalent of Year 10 until he left school, Mr Ryzak undertook trade training at school as an electrician and later worked and trained in a factory to obtain his qualification.
In Australia, Mr Ryzak attended a three weeks English course at the Migrant Hostel. He also attended a TAFE college for two or three weeks for the purpose of studying and taking an examination to obtain his Australian qualification as an electrician. In Australia, he initially worked in a factory on and off for two years eventually obtaining a job as an electrician in a factory in 1984. Between 1987 and 1989, Mr Ryzak worked at MES Pty Ltd as an electrician. In 1989, Mr Ryzak commenced work for Eurocrane services, where he continued to work until 1997. He later moved to the Blue Mountains where he undertook subcontracting projects.
Mr Ryzak told the Tribunal that he was able to conduct his daily work activities in English and could read and write English. He described his oral and written communication skills in the English language and being "medium". Mr Ryzak also speaks the Polish, German and Russian languages.
In 1994, Mr Ryzak suffered a serious injury to his left wrist, left ankle and foot. He required hospitalisation, surgery and a lengthy rehabilitation process.
Mr Ryzak was in receipt of workers' compensation and was also sent by the insurance company MMI to undertake computer training in the use of CAD, a computer drafting system.
Mr Ryzak stated that he also attended the Commonwealth Rehabilitation Service ("CRS") very briefly, but did not proceed past the reception. He told the Tribunal that he did not think he spent more than 10 minutes in this CRS office and was told by the staff member with whom he discussed his situation, that he was better off applying for a Disability Support Pension.
Mr Ryzak described for the Tribunal his constant pain in his left wrist and ankle.
In relation to his left wrist, Mr Ryzak requires his wife's assistance to dress himself, for example doing up buttons and tying up shoe laces. He is able to use his right hand. Mr Ryzak described the situation that if his left hand is in the same position for 20 minutes of more, he experiences pain, pins and needles and on occasions, numbness.
In relation to his left ankle, Mr Ryzak stated that it gives away without warning and is constantly painful. As recently as two weeks before the hearing, Mr Ryzak's ankle gave way and he fell down three steps. Before his major injury in 1994, Mr Ryzak stated that he had full balance but now he finds that often he is unbalanced and this places him in precarious situations.
Mr Ryzak described spending his time in short periods, reading, working on the computer and going shopping with his wife when Mrs Ryzak drives the car. In the supermarket, Mr Ryzak uses the shopping trolley as a mobility aid to provide balance and support. Mr Ryzak likes using the computer and particularly "surfing" the Internet through which he accesses Polish radio. He described for the Tribunal his ability to make contact with over 120 Polish radio stations.
Mr Ryzak had attended a TAFE course as part of his rehabilitation following his injury during which time he learnt to operate a computer drafting system, CAD. Mr Ryzak was driven to the course by either his son or a friend and then collected each afternoon. On occasions, he was required to use public transport, but this was rare. The course was held at Mount Druitt TAFE and lasted for approximately four months.
Because of constant pain, Mr Ryzak takes large quantities of analgesics, such as Panadol or Panadeine. He frequently has up to twelve tablets of Panadol per day.
In the past, Mr Ryzak had been provided with anti-depressants, but explained that the particular medication prescribed to him is no longer available. He has not taken anti-depressant medication for some time. Mr Ryzak has been attending his General Practitioner, Dr J M Knapik, since 28 December 1995. He attends Dr Knapik once per month to have a check up, obtain an ongoing medical certificate indicating his inability to work and also to obtain prescriptions. Mr Ryzak no longer consults with Orthopaedic Surgeon, Mr Elliott.
On rare occasions, Mr Ryzak will drive his car when it is raining. He drives his two children to the school bus, a distance of approximately 300 metres. Mr Ryzak stated that he is unable to drive further than this because he has no confidence in his ability to deal with normal driving conditions which require constant vigilance and the ability to respond both physically and mentally to changing driving circumstances. Mr Ryzak explained to the Tribunal that the distance he drives his children takes him only to the highway. He is unable to travel on the highway or to cross it as he considers that he would be an unsafe driver under such traffic conditions. Mr Ryzak is able only to drive with his right hand and his left foot could give way at any time, making him prone to accidents. In particular, Mr Ryzak believes he would be unable to respond to emergency situations or changes in driving conditions, such as having to break suddenly or turn the vehicle quickly. Under questioning, Mr Ryzak acknowledged that driving in wet conditions even on a quiet back road had inherent dangers which may not be easily dealt with given his disabilities. Mr Ryzak generally acknowledged that in fact driving his children such a short distance may even endanger himself and his children and he would have to reconsider his actions.
Mr Ryzak was referred to a statement made by Mr L Murnane, Disability Support Officer with Katoomba Centrelink (Exhibit R1). It was accepted that Mr Murnane had not spoken with Mr Ryzak but had considered Mr Ryzak's file and reached a number of conclusions. Mr Murnane opined that Mr Ryzak could not work as an electrician, his usual job, nor undertake heavy duty work such as the duties of a labourer, cabinet maker, miner, transport driver or moderate type physical work, either skilled or unskilled work as an electrical trades person, assembler, kitchen hand or machinist. Mr Murnane noted, however, that given Mr Ryzak's previous work as a qualified electrician and the work he did with the company in a light capacity, it appeared that he possessed transferable skills which would enable him to undertake work of a light nature, for example office work, as a receptionist, clerical type work or as a telephone salesman. Mr Murnane noted that Mr Ryzak is a relatively young man of 40 and he felt that Mr Ryzak would be able to participate in a learning environment given that he had already undertaken training or courses in the past. Participation in further learning may also open up avenues which Mr Ryzak had not yet explored in a work environment setting. Mr Murnane concluded that Mr Ryzak could upgrade his computer skills to enable him to work as a computer programmer or a data entry person using his right dominant hand. This type of work, Mr Murnane opined, leant itself to being completed from home and therefore eleviating some of Mr Ryzak's mobility concerns. Mr Murnane indicated that in his view, retraining and upgrading of Mr Ryzak's skills could open up other avenues of employment in the "higher skilled" fields such as consultant work, especially in the electrical field, as a supervisor, again in the electrical field, teaching in his previous occupation, electronic technician or as an Occupational Health and Safety representative for a company or industry body. While noting that work of this nature may not be readily available, and that there may be a reticence by employers to employ Mr Ryzak, this did not diminish the fact that, in Mr Murnane's opinion, Mr Ryzak could physically perform these types of work. Mr Murnane concluded that Mr Ryzak did not have a continuing inability to work and he therefore did not satisfy subsection 94(2)(a or b)(i) and (ii) of the Act (Exhibit R1).
Mr Ryzak stated that he could not undertake work such as in an office, or as a receptionist, explaining that he finds it difficult to concentrate for any length of time, particularly if he is taking analgesic medication. Further, Mr Ryzak stated that he is "not good on the telephone" or in taking messages. Mr Ryzak stated, referring also to Dr Knapik's opinion, that he finds it very difficult to remain still because he is required to constantly move about due to the pain, stiffness or numbness which occurs both in his left hand and left foot. Further, Mr Ryzak stated that he is restless and fidgety and would "go crazy" having to work in an indoors office environment. When Mr Ryzak had previously tried to obtain such positions, by answering newspaper advertisements, by telephoning prospective employers and attending organisations referred to him, no-one was interested in employing him, particularly when he explained his situation, his medical conditions and his physical requirements.

Mr Ryzak acknowledged that in the latter part of 1998 he had spent time going into his work twice a week for one hour each day, providing quotations. Whilst Mr Ryzak could not explain why this evidence had not come out previously in the review process, he told the Tribunal that in relation to undertaking such work now, he would find this extremely difficult, given his level of pain, his poor concentration, and his inability to stay in the same position for any length of time greater than 20 minutes. Further, Mr Ryzak stated that he would have difficulty in getting to and from either any work situation or training institution as he was unable to use public transport. He had a real fear of falling or his left leg giving way and further, there was no one available to drive him every day to and from any employment or training situation.
Mr Ryzak informed the Tribunal that he had been able to travel overseas to Poland in an aeroplane. In this situation, he was able to get up from his seat and walk around and the journey was broken up into two distinct "legs" which made it easier for him to cope. The purpose of his visit overseas to Poland was to attend spas and hot springs which he believed provided some benefit for his left hand and left foot conditions.
Referring to Dr Elliott's Treating Doctor's Report, it was pointed out to Mr Ryzak that on 21 August 1997, Dr Elliott had noted that Mr Ryzak was able to undertake sedentary type work within the next two years (T10). Mr Ryzak was further referred to Dr Knapik's Treating Doctor's Report of 15 June 1998, in which Dr Knapik opined that Mr Ryzak was not likely to be able to return to his normal job for more than two years and that in relation to full or part-time work, he would also be unable to return to either forms of employment for more than two years (T11, p48). Dr Knapik noted in this report that Mr Ryzak is able to understand and follow work instructions without difficulty, had no sensory or articulatory impairment and had minor limitations with movement. In relation to Mr Ryzak's ability to manipulate objects for work, Dr Knapik noted that he had some reduction in dexterity but could undertake a variety of tasks without difficulty, as long as it did not involve lifting or carrying objects. Dr Knapik concluded that in his opinion, Mr Ryzak was temporarily unfit for work or study from 1 June 1998 to 31 August 1998 (T11, p50).
Mr Ryzak agreed that Dr Knapik, when referring to dexterity, was only referring to his left hand and that he is able to use his right hand although this can become tired.
Mr Ryzak reiterated that his condition had deteriorated slowly since his claim, to the point where at present he believes he is unable to undertake any training. He had looked for work earlier in 1997 and 1998 over approximately a six month period but feels now that this is just not possible. Mr Ryzak emphasised to the Tribunal that while he has knowledge and skills related to his profession as an electrician, in order to be able to repair appliances, he needed to use two hands, not just his right hand. Further, in relation to keyboard work, Mr Ryzak considered that his ability to perform any tasks on the computer would be slow and not necessarily accurate given that he can only use one hand. Mr Ryzak told the Tribunal that he would like to work but just did not see that this could be a reality, given the pain that he is in all of the time and the restrictions that are placed upon him by his inability to use his left hand and his fear that his left leg will give away at any time. Imposed upon this reality is the fact that with changes of weather or changes of circumstances his limitations become magnified.
other medical evidence
dr j m knapik – general practitioner
On 15 November 1999, Dr Knapik reported that Mr Ryzak had been his patient since 28 December 1995. Since his accident, Dr Knapik reported that Mr Ryzak has been suffering from pain localised in his left wrist and hand and in his left foot and ankle. Mr Ryzak cannot stand or walk for long periods. His walking distance is limited to approximately 15 metres, after which he must rest because of the pain. Mr Ryzak also has a particular difficulty in traversing stairs and has had several episodes of his left leg giving away, resulting in him sustaining falls. Since the time of the work injury until present, Mr Ryzak has consulted at Dr Knapik's surgery dealing with either himself or, Dr Lipinski. Dr Knapik noted that as a result of Mr Ryzak's injuries, in addition to the primary limitation of movement of the affected joints in his left hand and foot, Mr Ryzak had also developed "post-traumatic osteroarthritis" (Exhibit A1).
Specifically in relation to Mr Ryzak's left wrist, Dr Knapik reported that there is a significant limitation of movement approximately five degrees of dorsal and palmar flexion and there is also very limited lateral flexion.
In relation to his left foot and ankle, Mr Ryzak walks with a visible limp and requires constant support for his left ankle, otherwise his movements are very painful. Mr Ryzak's ankle cannot be left without movement for any brief period of time, because this exacerbates the pain. Changes of position are therefore constantly required, Dr Knapik reported. Mr Ryzak experiences considerable stiffness in his left ankle joint and the left foot dorsal and plantar flexion are limited to between five and ten degrees. There is a limited pronation, supernation and rotation in the left ankle joint. In addition, Mr Ryzak suffers from acute and chronic pain in the affected areas.
Since sustaining his injuries, Mr Ryzak has had very limited use of his left hand because of pain and lack of full extent of movement, Dr Knapik concluded. There is a marked limitation on his grip strength and generally Mr Ryzak's left hand can be used to assist the right in non-strenuous and imprecise work.
Dr Knapik opined that according to the Impairment Tables, Mr Ryzak has a 50 per cent permanent disability of the use of his left hand and 30 per cent permanent disability of the use of his left leg.
In Dr Knapik's further opinion, Mr Ryzak's impairment is itself sufficient to prevent him from performing any job for at least 30 hours per week and there is no possibility of improvement or of the regaining of the movement range of the affected joints. Dr Knapik opined that Mr Ryzak could only perform work in a protected environment or in his own home and with frequent changes of position. This would mean frequent distraction and little effective/productive work time. Dr Knapik noted that Mr Ryzak could not perform any physical work, but other work would be limited to the use of one hand. Dr Knapik noted that again, pain and frequent change of positions would be a distraction for most jobs. In his opinion, Mr Ryzak has a very limited possibility, if any, of performing work. Similarly, because of the injuries themselves, Dr Knapik opined that Mr Ryzak is unable to undertake any educational or vocational training or on the job training in the next two years. He believed the completion of such a course and subsequent employment is almost impossible. In conclusion, Dr Knapik noted;
"Proposed training would be unlikely, due to the nature of the injuries. Therefore, within the next two years or longer, the patient would not attend such a course or be employed for at least 30 hours per week at award wage (sic). His condition has tended to deteriorate and because this involved also his locomotion ability, travel to and from work would be a great problem." (Exhibit A1)

submissions

Mr Ryzak submitted that he is unable to work or to be retrained for work in view of his physical disabilities related to his left wrist and hand, and his left ankle and foot. He has been used to working all his life and indeed would like to work now, but believes that with his impairments he is just not in a position to be able to sustain employment or to retrain. Mr Ryzak submitted that he is constantly in pain and when he takes painkillers, which is almost constantly, he loses concentration. Further, Mr Ryzak must, because of his impairments, constantly move, otherwise he experiences pain, pins and needles or numbness. Such "fidgety" and restless behaviour is not condusive to concentrating at the task in hand. He is distracted by not only the pain but his need to try and alleviate any pain.
Mr Ryzak submitted that it is also an issue for him getting to or from a place, be that a place of employment or the place where he would be expected to undertake training. In this regard, Mr Ryzak submitted that the only way it had been possible for him to attend the hearing was because he had a friend who was able to collect him from Strathfield station to drive him to the city and who would also be available to assist him to complete the return journey. Mr Ryzak submitted he is unable to negotiate public transport and would only take public transport very infrequently, only out of necessity. If there are no seats on public transport, Mr Ryzak submitted that he is unable to use it, as there is the constant threat that his left leg will give way and he will fall, causing himself, and possibly others, injury. Further, Mr Ryzak submitted that his ability to drive a car is severely restricted, and having discussed with the Tribunal the danger of him driving even 300 metres when he drives his children to the bus stop in the rain, this may now not be an option for him, given his reflection on the inherent dangers of driving even this short distance.
Mr Ryzak submitted that the Tribunal should take heed of Dr Knapik's opinion. Dr Knapik has been his treating doctor for many years and knows his physical and other limitations very well. Mr Ryzak further noted that his condition has deteriorated to the point where, whilst he would like to work, he does not have the dexterity, concentration nor the physical ability to either sustain employment or retrain for other positions. It is not as if Mr Ryzak has not tried to seek employment. He has tried, he noted, but contended that the fact that employers were not interested in him indicated his inability to work. The Tribunal should also note that for at least the last two and half years, Dr Knapik has certified every three months, that Mr Ryzak is unable to work or to undertake training because of his medical conditions.
Ms Buckley confirmed, on behalf of the Respondent, that the only issue in contention is whether or not Mr Ryzak satisfies subsection 94(1)(c) of the Act as to whether or not he has a continuing inability to work. Subsection 94(2) of the Act contains a definition of having a continuing inability to work and it only permits an Applicant's impairment alone to be considered in examining inability to work. This excludes factors which are not related to an Applicant's impairments, such as availability for work.
Turning to the impairments themselves, Ms Buckley noted that the SSAT had found that Mr Ryzak's impairments would not prevent him from undertaking light duties within the next two years. Mr Ryzak's treating Orthopaedic Surgeon, Dr Elliott, had assessed that he was medically fit for sedentary light work for at least 30 hours per week, having treated Mr Ryzak for two years previously (T10). Dr Kervison, Health Services Australia Medical Officer, noted on 20 July 1998 that Mr Ryzak could undertake light process work, or work as a caretaker or automotive photographic developer. In support of this, Ms Buckley submitted that Mr Ryzak had been undertaking light work for his previous employer during 1996 and 1997, helping with quotes one hour each day for two days per week.
Referring to the most recent medical report from Dr Knapik, dated 15 November 1999, Ms Buckley noted that Dr Knapik considers that Mr Ryzak's conditions have worsened due to post-traumatic ostero-arthritis since 15 June 1998, when he had last completed a medical report for Mr Ryzak. The current situation, as advised by Dr Knapik, is that Mr Ryzak now requires frequent changes of position due to exacerbation of the pain in his left ankle, and that this would be a frequent distraction either in a work environment or training situation. Further, Dr Knapik reported that Mr Ryzak's work would be restricted by the limited use he now has of his non-dominant hand, which caused some reduction in dexterity, as reported in June 1998, rather than substantially diminished dexterity. Dr Knapik now considers that travel to and from work would be a great problem, whereas at the time of Treating Doctor's report in June 1998, Dr Knapik had assessed Mr Ryzak as having minor limitations with movement.
Ms Buckley referred the Tribunal to the fact that care must taken in making a decision in this matter not to be distracted from making a determination based on Mr Ryzak's condition at the time of his claim and three months subsequently, as is required by the law.
Ms Buckley submitted that Mr Ryzak could undertake some training and light duties work. This proposition is supported by the opinion of Mr L Murnane, a Disability Support Officer with Katoomba Centrelink who provided his recommendations on 28 October 1999 (Exhibit R1). Ms Buckley submitted that the Tribunal should take note of Mr Murnane's opinion that Mr Ryzak's work as a qualified electrician and the work he did later in terms of undertaking quotations, indicates that Mr Ryzak's demonstrated transferable skills would enable him to undertake work of a light nature such as in an office, as a receptionist undertaking clerical work or as a telephone salesman. Ms Buckley noted that Mr Ryzak had told the SSAT that his wrist condition had stayed the same since his accident and operation, during which time he had been able to undertake light duties work for short periods. This provided support for Ms Buckley's contention that Mr Ryzak could undertake light work without training. Ms Buckley urged the Tribunal to note that the test for the grant of pension for a Disability Support Pension is not whether such work is actually available, or whether an employer would actually give Mr Ryzak a job, which he has advised has been a difficulty, but rather whether Mr Ryzak's impairments are by themselves sufficient to prevent him from performing such work. Ms Buckley submitted that Mr Ryzak's circumstances at the time of claim did not satisfy subsection 94(2) (a) of the Act.
If the Tribunal were satisfied that Mr Ryzak met subsection 94(2)(a) of the Act, then the Tribunal must also consider whether or not Mr Ryzak has a capacity for training. The SSAT found that Mr Ryzak's impairment would not prevent him from being retrained for more skilled light duties work within the next two years. Dr Kervison also was of the view on 20 July 1998, that Mr Ryzak could be trained to undertake electrical appliance or computer hardware repair work with training (T12). Since his injury, Mr Ryzak has successfully completed a course in Computer Aided Design and currently uses the computer. While Ms Buckley noted that Dr Knapik had most recently reported that Mr Ryzak cannot currently undertake any employment or complete training because of the need to move effected joints, and the difficulty with his travel, at the time of his claim and subsequently at the SSAT, Mr Ryzak's evidence was that his wrist condition had stayed the same since his accident and operation.
Ms Buckley asked the Tribunal to consider that Mr Ryzak, at age 40, with the previous experience of learning new skills, is likely to be able to participate in a learning environment. Mr Ryzak has been able to undertake computer training, he speaks and reads English well and is intelligent. In such circumstances, Ms Buckley submitted that Mr Ryzak would be able to upgrade his skills to work fields such as technical data entry, or repairing electrical appliances or computer hardware. The opinion of Mr Murnane in this regard should further be accepted that Mr Ryzak could obtain training in higher skilled areas such as teaching in his previous electrical occupation or as an Occupational Health and Safety Representative for a company or industry body. He may be able to undertake work of this nature from home which could address Mr Ryzak's mobility and transport concerns.
In such circumstances, Ms Buckley submitted that Mr Ryzak's impairments would not prevent him from participating in educational, vocational, or on-the-job training. Such training is not unlikely, because of his impairments, to prevent him from undertaking any work within the next two years and therefore subsection 94(2)(b) of the Act is not satisfied.
Ms Buckley concluded that Mr Ryzak does not have a continuing inability to work as defined in subsection 94(2) of the Act and accordingly 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 and by applying the law and case law. The Tribunal found Mr Ryzak to be cooperative and considered him to be a truthful witness.
There is no dispute between the parties and the Tribunal so finds that Mr Ryzak satisfies subsection 94(1)(a) of the Act in that he has a physical impairment and he also satisfies subsection 94(1)(b) of the Act in that he has an impairment of at least 20 points or more. In this regard, the Tribunal finds that the correct impairment rating for Mr Ryzak is 20 points for his left foot from Table 4 of the Impairment Tables and five points for Mr Ryzak for his left wrist from Table 3. These ratings provide a combined impairment rating of 25 points.
The Tribunal notes from the evidence of Mr Ryzak and also Dr Knapik that the impairment of Mr Ryzak's left wrist and left foot has deteriorated since his claim in 1998. The Tribunal notes the decision of Secretary, Department of Social Security v Goudge (1989) 17 ALD 415 for the authority that where a person is not qualified for pension at the time of the lodgement of the claim, the claimant ceases to have eligibility, except if he or she becomes qualified within three months subsequent to the claim. This material has been adopted in Re Lawson and Secretary, Department of Social Security (1997) 2 (12) SSR 169; Re Sherer and Secretary, Department of Social Security (1997) (AAT 12207, 12 September 1997); Re Secretary, Department of Social Security and Davis (1998) (AAT 12563, 27 January 1998). Thus, the Tribunal must look at Mr Ryzak's situation at the time he made his claim in July 1998 and three months subsequent to this.
The Tribunal considers that based on the opinions of Dr Elliott, Mr Ryzak's treating Orthopaedic Surgeon and Dr Kervison, the Health Services Australia Medical Officer, Mr Ryzak just prior to his claim and subsequent to his claim had significant disabilities. The Tribunal is of the view that at the time of the claim, and three months hence, Mr Ryzak did not have an ability to work as defined in subsection 94(2)(a) of the Act. The Tribunal has reached this finding, because it considers that the evidence from Dr Knapik in his Treating Doctor's report of 15 June 1998 (T11), indicates that Mr Ryzak is not able to work. While the Tribunal notes that this differs from the reports in terms of work capabilities from the opinions of Dr Elliott and Dr Kervison, it is more likely that Dr Knapik had a closer and more fundamental appreciation of Mr Ryzak's conditions and their impact on his ability to work.
The Tribunal does not however, consider that at the time of his claim and subsequently, that Mr Ryzak had an inability to undertake educational or vocational or on-the-job training during the next two years. The Tribunal has reached this view because Mr Ryzak had been able to undertake training on the computer and was able to work on the computer at home. The Tribunal considers that at the time of his claim and three months subsequently, Mr Ryzak still had the ability to learn and to use his skills to adapt to a more suitable employment situation. Mr Ryzak impressed at hearing as a man of considerable intelligence and ability, and the Tribunal believes at that time, the ability to physically and intellectually benefit from training was present. That the Commonwealth Rehabilitation Service referral was not acted upon was regretted and somewhat of a mystery.

Accordingly, while the Tribunal has found that Mr Ryzak did satisfy subsection 94(2)(a) of the Act at the time of his claim and subsequently, it finds that he did not satisfy subsection 94(2)(b)(i) of the Act and hence does not satisfy subsection 94(1)(c). In such circumstances, section 94 of the Act as a whole is not satisfied and Mr Ryzak is found by the Tribunal not to have been qualified for a Disability Support Pension at the time of his claim on 10 July 1998 and three months after that.
The Tribunal notes that while not within the Tribunal's purview, as at 15 November 1999, Dr Knapik opines that Mr Ryzak's left wrist, hand and left ankle and foot conditions have deteriorated. Such deterioration has, Dr Knapik opined, made it almost impossible for Mr Ryzak to either undertake training or to undertake any type of light duty employment. Mr Ryzak's evidence supports Dr Knapik's opinion. Unfortunately, because of the law, the Tribunal is unable to make any findings or a determination in relation to Mr Ryzak's qualification for Disability Support Pension at this time. Given the deterioration of Ryzak's condition and the medical opinion in relation to this, it may be that Mr Ryzak should discuss with the Department his current eligibility for Disability Support Pension.
In all the circumstances and for the reasons set out above, under the provisions of section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of S M Bullock
Signed:         .....................................................................................
  Associate
Date of Hearing          23 March 2000
Date of Decision  1 August 2000
Representative for the Applicant         Self-represented
Representative for the Respondent      Ms M Buckley, Departmental Advocate