Wei and Department of Family and Community Services

[2000] AATA 622

DECISION AND REASONS FOR DECISION [2000] AATA 622

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  N1999/1763

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

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member Rear Admiral A. Horton, Member 

Date28 July 2000

PlaceSydney

Decision      The Tribunal affirms the decision under review.

..…...(Sgd) B. H. Pascoe........
  Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairment of 20 points under impairment table – whether continuing inability to work
Social Security Act 1991 s. 94

REASONS FOR DECISION

28 July 2000            Mr B. H. Pascoe, Senior Member            Rear Admiral A. Horton, Member 

1. This is an application to review a decision of the Social Security Appeals Tribunal of 19 October 1999 which affirmed a decision of an authorised review officer of the respondent to reject a claim for disability support pension.

2. At the hearing, the applicant, Mr Wei was unrepresented and assisted by an interpreter. The respondent was represented by Ms H. Schuster, an advocate with Centrelink. The Tribunal had the documents provided by the respondent under section 37 of the Administrative Appeals Tribunal Act 1975 together with a report dated 6 March 2000 from Dr A. Woo, an orthopaedic surgeon and a report dated 28 June 2000 from Dr D. Keen, Senior Medical Advisor, Health Services Australia.

3. Mr Wei is a 42 year old Chinese born man who migrated to Australia in 1989 and was granted permanent residence in March 1995.  He worked for Strathfield Car Radios as a technician, installing and servicing motor vehicle sound systems until October 1997 when he was unable to continue working because of neck and left arm pain.  He first saw a doctor regarding his neck and arm problems in June 1997.  He took holidays in September 1997 partly because of the pain and partly to be with his wife and new baby.  He returned to work with a doctor's certificate for light duties.  However, he was told by Strathfield that there was no alternative work which he could be given.  As he was unable to do his former work after a week of trying, Mr Wei left in October.  Prior to that he had enquired about a position in sales but was told that his English was inadequate.  Mr Wei said that he tried a work experience position in repairs to medical equipment but, because of his neck problems, was unable to cope.  He has attended a TAFE course in Information Technology although has found it difficult to remain and concentrate in class because of neck pain and occasional dizziness.

4. Much of the evidence of Mr Wei was directed at the question of whether he was left hand dominant.  Apart from his neck, it is his left arm which has pain down the arm with occasional numbness of the thumb, index and middle fingers.  Dr Woo was of the view that Mr Wei was left hand dominant although, as part of his Chinese upbringing, he was taught to use the right hand always for writing and using chopsticks for eating.  He has continued to use the right hand for both those purposes.  Dr Keen was of the opinion that Mr Wei could be regarded as ambidextrous and neither arm could be regarded as dominant.  The relevance of this question is that Table 3 of the Tables for the assessment of impairment gives a higher rating to loss of hand function in the dominant limb to such loss in the non-dominant limb.

5. Dr Keen had stated that the research literature indicated that handedness is predominantly determined genetically but could be influenced also by environmental and cultural factors.  Mr Wei said that, until age 11, he had been brought up by his grandmother who was left handed.  He maintained that he was predominantly left handed although using the right hand for writing and chopsticks.  He said that he can and does regularly use a screwdriver with his right hand although he prefers the left and does use the left hand if the screw is very tight.  He accepted that he can use the right hand although he does not regard it as efficient as using the preferred left hand.  He said that use of the right hand eventually causes neck pain in the same way as use of the left hand.  Normally the onset of pain is not immediate but gradual and varying in intensity, frequently depending on the extent of use of the hand.  Mr Wei said that the pain and dizziness was now better than in 1997 when he had considered it dangerous for him to drive.  He is currently arranging examination by specialists in relation to the dizziness and headaches.

6. Section 94(1) of the Social Security Act 1991 ("the Act") sets out the qualification for and payability of disability support pension 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)the person has turned 16; and

   (e)the person either:

   (i)is an Australian resident at the time when the person first satisfies paragraph (c); or

   (ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

   (iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

   (A)is not an Australian resident; and

   (B)is a dependent child of an Australian resident;

   and the person becomes an Australian resident while a dependent child of an Australian resident."

The decision under review was that the impairment was of 15 points so that Mr Wei failed to satisfy section 94(1)(b) and so did not qualify.

1. There was no dispute that Mr Wei has an impairment rating of 10 for his cervical spine under Table 5.1 of Schedule IB of the Act. This rating is for "Loss of half of normal range of movement and frequent/constant neck pain". There is, however, difficulty of attributing a rating to his left arm problems. Table 3 covers upper limb function and provides that "determination of upper limb impairments must be based on a demonstrable loss of function". The relevant rating and criteria are:

   "Rating  Criteria
   NIL  Can use dominant limb effectively and/or

   Demonstrable evidence of loss of strength, mobility,coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

   FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.

   TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling."

Higher ratings refer to "significant interference" or inability to use the upper limb.

1. In our view, it is significant that each time Mr Wei spoke of problems in using either arm or hand he referred to the resultant pain in the neck.  While the medical reports spoke of "radiculopathy of the left arm", "pain and numbness of the left arm", "shoulder blade pain, pain down the left upper limb and stiffness, cracking and numbness in both middle fingers", Mr Wei appeared to us to have the neck pain and dizziness as his principal concerns.  A report by Dr Bleasel in November 1998 (T23) referred to him as "right handed, although he has a good deal of skill with his left hand".  Mr Wei said he is left handed.  Dr Keen said he is ambidextrous.  Dr Woo said that he is "definitely left arm dominant" and that "he has demonstrable evidence of loss of strength, mobility, coordination, dexterity and sensation of his dominant left upper limb which causes interference with hand function and manual handling".  Unfortunately, he did not state whether the interference was mild, moderate or significant.  However, as he was clearly quoting from the words of Table 3 and assessed a 10 point rating, it can be assumed that he assessed the interference as moderate.

2. It was submitted for the respondent that, based on the evidence of Mr Wei at the hearing, the rating for the left arm should be nil as any interference with hand function or manual handling with either arm was mild. It was said that the major problem was with the neck which has been taken into account under Table 5.1. The respondent sought to rely on the opinion of Dr Keen that Mr Wei was ambidextrous, the writing etc with the right hand demonstrated good motor skills and dexterity of that hand and so neither arm was the dominant upper limb. As such, the maximum rating could be 5 points for upper limb function giving a maximum total of 15 points and failing the requirements of section 94(1).

3. In our view, Mr Wei has not demonstrated loss of strength, mobility, coordination, dexterity and/or sensation of either upper limb which causes more than mild interference with hand function or manual handling. His principal problem is that the use of either arm causes neck pain. This pain interferes with hand function or manual handling not the loss of strength, mobility, coordination, dexterity or sensation of the limb itself. For completeness, we find also that Mr Wei does not have a dominant upper limb. We accept that he prefers to use his left arm and hand and it may well be that the left hand has more strength but we are unable to be satisfied that it is the "dominant limb". At the hearing Mr Wei tendered a list which he had made of the normal daily activities and which hand he used as the primary hand to perform the activity. It did show that the majority were performed with the left hand. Use of chopsticks, writing and a computer mouse were the only activities performed solely with the right hand. However, many were done with either or both hands. Again it is evidence that he has a preference for using his left hand but does not necessarily show the left as dominant. As such, at best, he may reach 5 points if he can demonstrate criteria for that rating. That will still be inadequate to satisfy the 20 point requirement of section 94(1)(b) of the Act. Once his dizziness problem is diagnosed it may be possible for him to seek a further points rating under another Table. However, we find that he does not satisfy section 94(1)(b) of the Act and does not qualify for a disability support pension.

4. For completeness, it should be said that, even if we are wrong and Mr Wei can demonstrate an impairment of 20 points or more, we further find that he does not satisfy section 94(1)(c) in that he does not have a continuing inability to work. Subsections (2)-(5) of section 94 clarify the phrase "continuing inability to work":

   "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 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.

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

   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:
   "educational or vocational training" does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
   'on-the-job training' does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;
   "work" means work:

   (a)       that is for at least 30 hours per week at award wages or above; and

   (b)that exists in Australia, even if not within the person's locally accessible labour market."

5. Mr Wei is clearly an intelligent and well-educated man.  According to the history taken by Dr Bleasel, Mr Wei attended university in China, was in the Army, in telecommunications and in a bank.  In his evidence he said that he had a high level of education.  He was confident that, subject to possible problems with his level of ability with English, he could do a sales job.  He has restrictions with any job which requires extensive use of his arms, significant periods of writing, sitting or standing for long periods or turning his head.  However, he says that he wants to work and, if he could find work which he could do at home with an ability to take breaks if pain becomes a problem, he believes that he could cope well.  We do not believe that his impairment is, of itself, sufficient to prevent Mr Wei from working for at least 30 hours per week within the next two years nor undertaking appropriate training within that period.  We would be surprised if Mr Wei himself would honestly believe that this is not possible.  In the circumstances we do not believe it necessary to identify or list the possible work which he can do other than to say that there are many occupations, such as sales, which can accommodate a person with such restrictions.

6. It follows from our findings that, as Mr Wei does not satisfy either paragraph (b) or (c) of section 94(1) of the Act, the decision under review should be affirmed.

   I certify that the thirteen (13) preceding paragraphs are a true copy of the reasons for the decision herein of

   Mr B. H. Pascoe, Senior Member
   Rear Admiral A. Horton, Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  5 July 2000
   Date of Decision  28 July 2000
   The Applicant  Self-represented
   Solicitor for the Respondent    Ms H. Schuster, Centrelink