Zackary and Department of Family and Community Services

[2002] AATA 556

DECISION AND REASONS FOR DECISION [2002] AATA 556

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No    N2001/1192

GENERAL ADMINISTRATIVE DIVISION          )          

Re      EDDY  ZACKARY

Applicant

And    Secretary, Department of Family and Community Services         

Respondent

DECISION

Tribunal       Rear Admiral A R Horton AO, Member   

Date9 July 2002

PlaceSydney

Decision      The decision under review is affirmed    

[SGD]  Rear Admiral A R Horton AO
  Member

CATCHWORDS
SOCIAL SECURITY – claim for disability support pension – whether Applicant has physical, intellectual or psychiatric impairment – whether impairment is 20 points or more vide Schedule 1B - whether Applicant has continuing inability to undertake work – ability to undertake educational or vocational training

Social Security Act 1991 – section 94, schedule 1B
Social Security (Administration) Act 1999 – Schedule 2

REASONS FOR DECISION

9 July 2002                          Rear Admiral AR Horton AO, Member          

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 9 July 2001 which affirmed a decision of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 11 August 2000, that Eddy Zackary ("the Applicant") is not eligible for the disability support pension ("DSP"). The latter decision had been affirmed in a decision by an authorised review officer ("ARO") dated 2 April 2001.

2. The Applicant lodged an Application for review by the Administrative Appeals Tribunal ("the Tribunal") on 14 August 2001.  At the hearing before the Tribunal on 6 June 2002, the Applicant was self-represented. Ms R Quinn, an advocate for Centrelink, appeared for the Respondent.  Mr A Antonious, an interpreter fluent in the Arabic language, was present to assist the Tribunal.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following documentation:

Exhibit A1     Letter from Dr P Marantos, Consultant Physician, dated  26 July 2001      
Exhibit A2     Report from Dr O Mattar, Consulting Psychologist, dated 12 August 2001 
Exhibit A3     Letter from Dr R Tayeh, General Practitioner, dated 10 November 2001     
Exhibit A4     Report from Dr J Criticos, General Practitioner, dated 18 December 2001  
Exhibit A5     Report from Dr G Takas, Consultant Psychiatrist, dated 12 April 2002        
Exhibit R1    Report from Dr D Keen, Senior Medical Advisor, Health Services Australia, dated 7 February 2002         

LEGISLATION

1. Section 94 of the Social Security Act 1991 ("the Act") defines the qualification criteria for the disability support pension, and states, relevantly:

   "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.

   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.

   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

   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:

   …

   "work" means work:

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

   (b)…"

2. Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:

   "4. Start day – early claim

   If

   a person (other than a detained person) makes a claim for a relevant social security payment; and

   (b)the person is not, on the day on which the claim was made, qualified for the  payment; and

   (c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim was made, and;

   (d)      the person becomes so qualified within that period;

   the claim is taken to be made on the first day on which the person is qualified for the social security payment."

3. Impairment is assessed against the work related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

   "2.       These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.  These Tables are function based rather than diagnosis based.  …

   3.        These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …

   4.        A rating is only to be assigned after a comprehensive history and examination.   For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …        

   5.        The condition must be considered to be permanent. …
   …

   7.        In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. …"   

ISSUES

1. The Applicant lodged a claim for DSP in July 2000. On 11 August 2000, a delegate of the Respondent denied eligibility on the basis that the Applicant's permanent medical impairment was rated at less than the 20 or more points, vide the Schedule 1B Impairment Tables, as required under section 94(I)(b) of the Act. That decision was affirmed on review dated 12 December 2000, the total impairment rating being 10 points. Following the consideration of further medical evidence, an ARO affirmed the decision on 2 April 2001, finding permanent impairments in respect of the cervical spine and lower back, right shoulder and right knee pain, hyper cholesterolaemia and generalised strain of the thumbs, but concluding that the combined impairment rating remained unchanged at 10 points.

2. On 9 July 2001, the SSAT affirmed the decision of '23 January 2001', which the Tribunal considers to have been made on 12 December 2000, finding that the combined impairment rating for the permanent impairment conditions noted above to be 5 points, and hence the Applicant did not satisfy the provisions of section 94(1)(b) of the Act. The SSAT accordingly did not proceed to consider whether the Applicant had a 'continuing inability to work' under section 94(1)(c) of the Act.

3. On 7 February 2002, Dr D Keen, Senior Medical Advisor, Health Services Australia (the "HSA"), carried out a file review (Exhibit R1), taking into consideration further medical reports provided by the Applicant.  He considered that a finding by Dr P Marantos, Consultant Respiratory and Sleep Physician (Exhibit A1), that the Applicant had moderately severe chronic airflow limitation secondary to previous smoking, warranted an impairment rating under Table 2 of 25 points, (the condition being diagnosed, investigated, non reversible and permanent) and that the combined impairment rating was 30 points. 
   At the outset of the hearing, the Respondent conceded that on the basis of Dr Keen's report, the Applicant met the 20 points criteria under section 94(1)(b) of the Act, the only issue before the Tribunal being whether he had a 'continuing inability to work' pursuant to section 94(1)(c)(i) of the Act. Section 94(1)(c)(ii), in respect of participation in the health department supported wage system, is not relevant to this matter.
   APPLICANT'S EVIDENCE

4. The Applicant was born in Egypt in 1947.  He arrived in Australia in 1968, aged 21.  His schooling in Cairo took place in French and Italian schools, to the equivalent of year 10.  He subsequently completed two years full time study (or half the required course) for a trade diploma at the equivalent of TAFE with a view to becoming a qualified fitter.  He then worked for one year as an assistant to a fitter before migrating to Australia.

5. From 1968, when he arrived in Australia, until about 1981, the Applicant worked in various industries, initially as a machine operator in a fibre container manufacturing plant then as a storeman, at times having responsibility for maintaining records, such as during an eight months period at Qantas, where "I used to like writing", this comment apparently referring to maintaining store keeping records.  From his evidence, he was primarily a process worker from about the mid 1970s, which he described as "heavy work".  In about 1981, he was injured in his employment with Womens Weekly and was on sick leave for some months.   Some time after he returned to work, which again involved heavy labouring, the company closed down the facility. There is some doubt as to when this occurred, the Applicant initially agreeing with the Tribunal that on his evidence, it appeared to be in the early 1980s but subsequent consideration of his employment in the taxi industry suggested that it may have been in about 1990.    

6. The Applicant stated to the Tribunal that he commenced employment as a part time taxi driver, which involved "two or three shifts (per week)".  This seems to conflict with a later statement in cross-examination that "I used to drive full time a long time ago", the implication being that he started in the industry as a full time driver.   The Tribunal understands that full time would normally mean in the order of 4 or more shifts per week.  The Applicant gave evidence that he "stopped it (full- time driving) because I got a problem with my back and ever since I cannot do it." The Tribunal is of the opinion that the matter of whether or not the Applicant was full time, to the extent that he worked four or more shifts per week, may not be of significance given his agreement to the suggestion by the Tribunal that "from, say, the early 1990s, you were a part-time driver doing two or three shifts and then sometime later, maybe two years later, you found that your were down to doing just one shift".

7. A standard shift within the taxi industry is 12 hours. At some point the Applicant reduced his workload from two or three shifts per week to one shift per week because he did not "feel the best".  He gave evidence that he ceased taxi work about one year ago, by which time he was undertaking a single shift of 8 hours, although such a shift was not economically viable.   He stated that he ceased driving because of problems with his back, his neck and nerves, and that he gets stressed since his divorce in 1994. In response to a question by the Respondent as to whether respiratory problems impacted upon his ability to drive, he stated "I feel uncomfortable really", although in response to a further question, he stated that breathing problems had occurred after he ceased driving.

8. The Applicant has not worked since giving up taxi driving.  He informed the Tribunal that he could not work a 12 hour shift given his medical conditions, and reiterated that shorter shifts were both uneconomical and generally not available.  He thought it possible that he could undertake work that required him to remain seated for two or three hours, but with opportunity to take breaks and move around; he had not sought such jobs, and "they (Centrelink) did not give me anything".  He had applied for process work positions, but stated they were not available, and his age went against him.  He conceded that in any event, he could not do a job which required standing for more than two hours.

9. The Tribunal sought the views of the Applicant as to what type of job, if any,  he believed he could perform.  The Applicant stated that he could copy documents for short periods, but could not originate documents as his English language skills were lacking.  He saw re-training as only being relevant to a job that he physically could undertake; he implied that he could not identify any such jobs.  He stated to the Respondent that he could not work as a shop assistant, because he could not lift anything.   He had no experience in a customer service role, but gets upset and very nervous when required to interact with other people.  He did not consider he could now undertake a TAFE  like course, because of his English language skills and  poor concentration and because he sometimes did not feel well.  

10. The Applicant lives alone in Housing Commission accommodation.   His daily routine is to remain at home where he looks after himself as much as he needs to.  He carries out his limited shopping, reads the paper, and visits friends; he has a car, but does not drive very much due to his back condition and his nerves. He cannot walk for more than 15 minutes, and does not frequent any clubs as he cannot afford to do so. He sees his general practitioner about once, sometimes twice, a month.  He takes various medications, these being recounted as serapax for his back, zamatil for an ulcer, lovan prescribed by his psychiatrist, Dr Takas, and an unnamed medication to assist his breathing.  He stated to the Respondent that at the time of lodging his claim, some two years previously, he was not taking all of the current medication, because his condition had become worse since then, but at that time he was taking celebrex and somac, as well as a cream for his back.

MEDICAL EVIDENCE

1. The medical conditions considered by Dr H C Lovett-Iskander of HSA on assessment after lodgement of the claim for DSP by the Applicant in July 2000 related to the cervical and lumbar spines, and chronic pain in the right shoulder and right knee.  He assessed the implications of these conditions as restriction in prolonged static posture and weight bearing, and heavy lifting.  He considered the Applicant to be fit to work in sedentary light duties and suggested he might benefit from rehabilitation.  He considered he was fit at that time to return to study and to light duties for at least 30 hours per week.  In a file re-assessment on 5 December 2000, following submission by the Applicant of a further Treating Doctor's Report (Dr G G Mahoney, of 14 November 2000 at T23) which considered the Applicant would not be able to return to study or any work for more than two years, and consideration of EMG and nerve reduction test results, Dr Lovett-Iskander confirmed his previous assessment in respect of the Applicant's ability to return to work, whilst identifying the additional impairments of hypercholesterolaemia and generalised strain of the thumbs.

1. On 6 March 2001, Dr R Allen (T35) Cardiologist, assessed the Applicant for cardiovascular disease.  Dr Allen notes that conditions were stable, "his resting ECG was normal and he exercised on the Bruce protocol for nine and a half minutes, which was above predicted for his age.  ….no chest pain and no ECG changes. Resting echocardiography confirmed normal ventricle with normal hypocontractility….".  On 2 April 2001, the ARO decided not to change the primary decision that the Applicant was not eligible for DSP, retaining a combined impairment rating, as assessed in the file review by HSA, of 10 points.  The ARO further agreed with the HSA assessment, although not specifically addressing the issue, in respect of the Applicant being fit to work in sedentary light duties.

1. On 24 April 2001, Dr P Marantos, Respiratory and Sleep Disorders Physician, reported (T38) on the Applicant as having moderate severity chronic bronchitis secondary to smoking. He made no comment at that time as to the Applicant's ability or otherwise to return to work.  On 2 June 2001, Dr O Mattar, Consulting Psychologist, assessed (T40) the Applicant as suffering from sleep disorder, stress disorder, anxiety attacks, inability to relax and chronic pain.  He considered his symptoms to have been of such severity as to cause "clinically significant distress and impairment of social and occupational functioning, irritability and withdrawal from others." He concluded that the Applicant's employment chances were very poor due to his "pyschological condition and his impaired concentration and memory".

1. Subsequently, on 2 April 2001, the SSAT affirmed the decision under review, confirming that the Applicant had permanent impairments relating to chronic pain in the neck, lower back, right shoulder and right knee, hypercholesterolaemia and stress/anxiety.  The SSAT assessed a combined impairment rating of 5 points, declining to consider chronic bronchitis (diagnosed by Dr Marantos) in the absence of mention by either the Applicant, the treating doctor or HSA.  The SSAT also considered that the symptoms of a psychological nature (reported by Dr Mattar) did not meet the Impairment Table guidelines in respect of full diagnosis, treatment and stabilisation. 

1. Subsequent medical reports are that of Dr Marantos dated 5 June 2001 (T41) and those at Exhibits A1 to A5 and Exhibit R5.  At Exhibit A1 (and at T41), Dr Marantos confirms his diagnosis of moderately severe airway obstruction/disease.  In the former, he considers the Applicant would "be unable to perform work requiring moderate exertion levels"; in the latter, he considers him "unable to perform physical work because of his lung impairment."  At Exhibit A2, Dr Mattar describes the Applicant's condition as "having an altered negative sense of himself and his own future and he presents with persistent symptoms of increased arousal (disturbed sleep, irritability and anger, difficulty concentrating). Additionally it appears he has encountered significant psychological consequences".  Dr Mattar considers the Applicant's chances of employment to be very poor, with risks.

1. The brief report by Dr R Tayeh, General Practitioner, dated 10 November 2001 (Exhibit A3) finds the Applicant suffering from depression, and not capable "in the foreseeable future to gain employment".  The most recent report by Dr Criticos
    (Exhibit A4), the Applicant's treating doctor since 1993-94, stresses the permanent nature of physical and psychiatric impairments, and a continuing inability to work.  He accords with Dr Mattar's findings in respect of suicide ideation and severe anxiety attacks, which he considers should be accorded a 20 point rating, (presumably on the basis that the condition is diagnosed, investigated, treated, etc).  He assesses the Applicant's ability to work in the following way:

"I would regard this man as having an inability to work for at least 30 hours per week      and that is based on his current situation that he can only work for 8 hours per week on a selected shift basis as a taxi driver.  The impairment itself does not preclude this man from undertaking educational vocational on the job training, however, by December 2002, he will be 55 years old and this may need to be taken into account".

1. The medical report by Dr Keen of HSA, previously referred to, is by way of a review of the medical file of the Applicant. It resulted in the Respondent conceding a combined impairment rating such that the Applicant meets the conditions of section 94(1)(b) of the Act. Dr Keen does not support the contentions of the orthopaedic specialist, Dr Mahony, in respect of the Applicant being unfit for any employment, on the basis that it is not supported by reasoning. He considers the diagnosis of depression, reported by Drs Tayeh and Mattar, to be lacking in detail, treatment and prognosis, that the condition has not as yet been treated and stabilised and was not identified until June 2001. He considers that Dr Criticos allocates impairments that are generally inconsistent with documented radiological and clinical findings and is therefore "unable to concur with most of his ratings."

1. In respect of whether the Applicant has a continuing inability to work, Dr Keen agrees that he is unfit for physical work "as per his respiratory physician", and that he is also unfit for work requiring heavy lifting and repeated bending.  He goes on to state that "there is no evidence provided that suggests he is unable to undertake work of an alternate and more sedentary or semi-sedentary nature where he can alter posture regularly".  He agrees with Dr Criticos, the treating doctor, that there is no medical reason why the applicant could not undertake appropriate re-training.  In conclusion, he gives his opinion that "in the absence of a specialist psychiatric opinion to the contrary, the objective medical information available leads to the conclusion that the Applicant remains fit for full-time alternative employment".   

1. Dr G. Takas provides a later psychiatric assessment on 12 April 2002 (Exhibit A5).  He found the Applicant to be "quite depressed" and suggests the pressures from the Applicant's activities with Centrelink have "brought background issues to the fore".  He  opines that "his depression has become quite acute" and recommends increased medication (Lovan and Dothiepin).  He makes no comment on the issue of whether the Applicant is fit to work.    

SUBMISSIONS

1. The Applicant was asked to raise any matters or views that he considered may not have been addressed in examination or cross examination, or that the Tribunal should be aware of.  He stated that the various reports before the Tribunal were sufficient to confirm that he had difficult medical impairments, and such impairments predicated against a return to the work force.  He affirmed that he was not refusing to work, but he needed to be shown what work was available that could be undertaken given his medical constraints and his limitations in the English language.  He considered Centrelink had done nothing to help, and his referral by Centrelink to the Commonwealth Rehabilitation Service had been of no value – "they did nothing". He also stressed that employers were not interested in considering people of his age.  In evidence, he had stated that he no longer had the ability to concentrate in a re-training role, and to undertake re-learning of skills.   Finally, he stated that his condition had worsened since his application had been lodged in June 2000.
        The Respondent submitted that the relevant period in which the assessment of the Applicant's continuing inability to work must be considered was within a period of 13 weeks from the date of application for DSP.  The Respondent submitted that the Applicant's impairments were such that he was unfit for physical work requiring heavy lifting or repeated bending, as supported in the relevant medical reports, but the Respondent also submitted that on the weight of evidence, the Applicant was capable of undertaking sedentary or light work in a variety of occupations.  Further, there was no medical reason why he could not undertake educational or vocational training. He had in the past undertaken a component of a TAFE equivalent course, and handled the requirements of learning and memorising routes and destinations as a taxi driver, and the Respondent submitted that he had the capability to undertake suitable education and re-training.   
         The Respondent referred the Tribunal to the most recent report by Dr Criticos, the treating doctor, at Exhibit A4, which supported that contention. The Respondent submitted that the Applicant had conceded that he was prepared to undertake suitable work if it could be identified, albeit, he had indicated he could not work in any of the occupations mentioned during the hearing.  The Respondent was unable to report on the results of the referral to the Commonwealth Rehabilitation Service.  In respect of the psychological condition noted by Drs Mattar and Tayeh, the Respondent considered this remains to be fully diagnosed and treated, as stated by Dr Keen, and that it was first identified outside the relevant period for the consideration of this claim; it was submitted that the same consideration must apply to the Applicant's psychiatric state.  The Respondent supported the contention of Dr Keen, as delineated in paragraph 25 above, as an accurate assessment as to whether the Applicant has a "continuing inability to work". Non-medical issues such as the Applicant's limited understanding of English were not relevant to the consideration of this matter, nor were labour market conditions, given that the age of the Applicant precludes him from consideration under the beneficial provisions of section 94(4) of the Act.

2. The Respondent was invited by the Tribunal to address in some detail the range of sedentary or light occupations that might be suitable for the Applicant, and the relevance and availability of educational and vocational training that might be available and/or required for those occupations. The Respondent contended that she had in mind occupations of a like nature, such as customer service, gate keeper, ticket seller, console operator or working in a service station, on the basis that the knowledge and type of skills required would include communication skills and an ability to deal with money and operate simple machinery such as a console or cash register. It was submitted that the Applicant had demonstrated an ability to do on-the-job training and to undertake those occupations, and that the skills required to undertake those occupations would be learnt on the job or in educational or vocational training that would be accomplished within a two year time frame, thus meeting the requirements of section 94(2)(b)(ii) of the Act. As to whether the Applicant had been desultory in looking for alternate employment, if that was the case, because of an exemption from the activity tests because of medical tests, the Respondent saw that as not being relevant, it being the Applicant's responsibility to find suitable work.

ANALYSIS OF EVIDENCE AND FINDINGS  

1. The Respondent concedes that the Applicant meets the qualifying conditions in section 94(1)(a) and (b) of the Act, that is, he has an impairment of 20 points or more under the Impairment Tables. The issue for the Tribunal is whether he meets section 94(1)(c) in respect of "a continuing inability to work", the period of assessment being within 13 weeks of the date of the claim for DSP vide Schedule 2, Part 2 of the Social Security (Administration) Act 1999.

1. The medical evidence in this matter covers a number of conditions, and is reasonably consistent in the opinion that the Applicant's impairments prevent him from undertaking employment in any occupation requiring heavy lifting or repeated bending. Whilst not always addressed, the consensus is that such employment as driving a taxi for long shifts, that is being obliged to remain seated for lengthy periods, is also no longer a relevant occupation. Medical opinion is somewhat contradictory as to whether the Applicant can undertake more sedentary or light employment, and whether he can meet the requirements in section 94 of the Act in respect of educational or vocational training should that be required. The treating doctor, Dr Criticos, is of the opinion in June 2000 (T16) that the Applicant could probably return to work for 8 hours per week, would be unlikely to be able to return to full time work of at least 30 hours per week for over two years, and would not benefit from vocational work or training. He maintains this opinion regarding work in Exhibit A4 in December 2001, but considers that the impairments do not prevent the Applicant from undertaking vocational on-the-job training. He is supported in respect of the work issue by Dr Mahony who completed the later Treating Doctors Report in November 2000 (T23).

1. In March 2001, Dr Allen provides a clear report in respect of the Applicant's cardiovascular condition, and makes no comment in respect of ability to work. In April 2001, Dr Marantos diagnoses moderate severity chronic bronchitis secondary to smoking.  In the later reports of June 2001 (T41) and July 2001 (Exhibit A1) he considers the Applicant unable to undertake moderate physical work. Dr Mattar diagnoses depression in June 2001, and considers the Applicant's employment chances as being poor.  Dr Tayeh, examining the Applicant in November 2001, considers his chances of employment as poor.    

1. HSA doctors are in agreement that the Applicant can undertake employment in sedentary occupations. In July 2000, Dr Lovett-Iskander, on examination found the Applicant to be fit to return to light duties; in a file review in December 2002, and taking account of later medical reports, he affirmed this opinion. In a further file review, and again taking account of later medical reports, and in particular those by Dr Marantos in respect of bronchitis, Dr Keen is unable to support the diagnoses of depression in the absence of detailed diagnostic data, nor can he agree the impairment ratings of Dr Criticos. He endorses the opinion of Dr Marantos that physical work is precluded, and in the absence of specialistic psychiatric opinion to the contrary, considers the Applicant fit for full time work.     

1. Considering the medical evidence in isolation, the consensus of opinion, where expressed, falls towards an acceptance that the Applicant can undertake light work on a full time basis, and can undertake necessary educational and vocational training.  The most significant impairment is that of chronic bronchitis, and here the diagnosing specialist only precludes the Applicant from employment where it involves physical work.  At T41, Dr Marantos uses the expression "work requiring moderate exertion levels". The Respondent accepted the condition and implications as reported by Dr Marantos in assessing the combined impairment rating, and the Tribunal considers it appropriate to place the relevant emphasis on the views of Dr Marantos in respect of the work issue. The brief report by Dr Takas, Consultant Psychiatrist, is not, in the opinion of the Tribunal, of sufficient weight to influence the above conclusion. The psychiatric report is well outside the period of assessment, and does not appear to meet the requirements of Schedule 1B of the Act in respect of diagnosis, treatment and stabilisation.

1. The evidence of the Applicant was, in the opinion of the Tribunal, not such as to counter the conclusion on the medical evidence that he does not have a continuing inability to work, as assessed within the appropriate period. His evidence was that he had only been looking at process work, (which it is agreed he is now unable to perform), and seemingly has been relying on Centrelink to find him employment. Whether that is the case or not, the Tribunal finds that on the evidence before it, the Applicant could return to work in sedentary or light occupations, the type of which has been earlier identified, and could undertake educational or vocational training to fit him for work in those areas of employment. The Tribunal also finds that there is no reason, on the evidence, to suggest that the Applicant would not be able to meet the requirements of section 94(5) of the Act in respect of his ability to work, within his limitations, for at least 30 hours per week. Thus the Tribunal finds that the Applicant has does not have a "continuing inability to work" and hence the conditions of section 94(1)(c) of the Act have not been met, and the Applicant does not qualify for the disability support pension. In reaching that decision, the Tribunal notes that a later application for the DSP has been made, and acknowledges that the psychological and psychiatric conditions affecting the Applicant may well be more appropriately determined in the course of the investigation of that claim.

DECISION

The decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of
the reasons for the decision herein of Rear Admiral A R Horton AO, Member

Signed:         S.Swamy           .....................................................................................
  Associate

Date of Hearing  6 June 2002
           Date of Decision  9 July 2002
           Representative for Applicant       Self Represented
           Advocate for the Respondent      Ms Rachael Quinn