Re Gerard Joseph Parkinson v Director-General of Social Security [1984] FCA 49 (14 March 1984)

FEDERAL COURT OF AUSTRALIA

Re: GERARD JOSEPH PARKINSON
And: DIRECTOR-GENERAL OF SOCIAL SECURITY
No. WA G36 of 1983
Social Security

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Social Security - invalid pension - whether Tribunal's approach to phrase "permanently incapacitated for work" correct - whether question of law - assessment by Tribunal of incapacity by reason of medical condition, willingness to work and availability of employment - appeal not rehearing nor general review

Administrative Appeals Tribunal Act 1975 s.44(1)

Federal Court Rules 0.53 r.3

Social Security Act 1947 ss.23, 24

HEARING

PERTH
14:3:1984

ORDER

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

DECISION

This is an appeal from a decision of the Administrative Appeals Tribunal affirming the decision of the delegate of the Director-General of Social Security made 2 November 1982 to reject the applicant's claim for an invalid pension.

The Administrative Appeals Tribunal Act 1975 sub-s.44(1) allows a party to a proceeding before the Tribunal to appeal to the Federal Court "on a question of law". Order 53 rule 3 of the Federal Court Rules requires a notice of appeal to state, inter alia, "the question or questions of law to be raised on the appeal". This obliges the party appealing to identify the question of law on which the appeal is brought and thereby assists the Court in determining whether the matter before it is justiciable.

The notice of appeal in the present matter does not state the question or questions of law to be raised except in so far as it asserts that the Tribunal erred in law in a number of respects. This is not satisfactory, particularly when, as in the present case, a number of the grounds of appeal relate to the alleged failure of the Tribunal to give "proper weight" to a number of matters, all of which are clearly questions of fact.

In the end the appeal focussed on one question - did the Tribunal approach the matter before it with a correct understanding of the phrase "permantly incapacitated for work" in s.24 of the Social Security Act 1947, as that expression has been interpreted in a number of decisions? A person who is "permanently incapacitated for work" and otherwise meets the requirements of s.24 is qualified to receive an invalid pension. By reason of s.23, "a person shall be deemed to be permanently incapacitated for work if the degree of his permanent incapacity for work is not less than 85%". There are of course other entitlements under the Act, in particular unemployment benefits (s.107) and sickness benefits (s.108).

The applicant was born on 18 October 1927 and, at the time of the hearing by the Tribunal, was 55 years of age. He had no formal qualifications, spending some years as a clerk in an accountants' office and thereafter as a sales representative in pharmaceutical organisations. In 1976 he was employed by Medibank but was dismissed in 1979 on the ground that, when seeking employment, he had failed to disclose a "previous back condition". He had not worked since July 1979.

Apart from an application for the position of public relations officer with the Arthritic Foundation, the applicant made no attempt to obtain employment until May 1983. He did so then on the advice of his solicitor and in anticipation of the hearing by the Administrative Appeals Tribunal. The applicant applied for 7 positions, basically of a clerical nature; in each case he was unsuccessful. The applications and the employers' replies were tendered in evidence. Before this Court counsel for the applicant relied on the replies as evidence of the state of the job market, drawing attention to references to "tremendous number of applicants", "overwhelming response" and the like.

There is no doubt that the applicant has a degenerative back condition. Sir George Bedbrook assessed him as "fit to work within the limitation of about 30%" (report of 16 September 1981) and as "approximately 30% on the Workers Compensation Scale" (report dated 8 March 1982). Told of that assessment, Dr. Nunn commented:

"I would not grizzle about it. I think he is being a bit generous; I would have assessed 25 per cent, which I usually assess as the percentage when someone is capable of selected work. I think at 40 per cent they are not really capable of doing much at all. This is under the terms of the Workers Compensation Act".

On the other hand Dr. Robinson, a specialist in rehabilitation medicine, reported on 22 December 1981:

"Overall therefore and after due consideration and discussion with the social worker from my rehabilitation team here, I consider that in all probability, and by virtue of the circumstances indicated above, that he is to all intents and purposes unemployable in todays open competitive work force, and I consider that he is overall 85% disabled within the meaning of the Act, and recommend that his appeal against the rejection of the invalid pension be upheld".

It is apparent that Drs. Bedbrook and Nunn on the one hand and Dr. Robinson on the other were directing their attention to different bases of assessment. The Tribunal did not in terms reject any of these assessments, commenting:

" . . . so we must assume that the difference between the orthopaedic specialists' assessments and the rehabilitation specialist's assessment is made up by age, the state of the labour market and motivation".

But, by implication, the Tribunal did not accept Dr. Robinson's assessment, for its reasons continue with a paragraph which is the crux of its decision:

"6. We think that significant facts in this matter are the failure of the applicant to seek work in a period of nearly four years until just before the case, together with the percentage incapacity found by the orthopaedic surgeons. We think on that evidence that the true view of this case is that it is a case where there is an inability to exploit a capacity for work due to depressed job opportunities together with a lack of genuine interest in obtaining paid employment".

The Tribunal made those comments after saying that it directed itself in accordance with the decision of the President of the Tribunal in Re Panke and Director-General of Social Services (1981) 4 ALD 179, in particular at p.182.

It then quoted a fairly lengthy passage from the judgment of Davies J. at pp. 182-183. It is not entirely clear to me what principle the Tribunal relied on in the remarks of Davies J. In that case the applicant, in his Honour's view, was able to and would obtain full-time employment as an electroplater, were it not for his medical condition. Davies J. considered that the applicant was "virtually unemployable, by which I mean that he has little prospect of earning income from his work. That position has been brought about by the advanced degenerative changes in his spine associated with osteoporosis". His Honour was "therefore satisfied that, for the purposes of ss.23 and 24 of the Social Services Act, the applicant is permanently incapacitated for work and that the degree of his incapacity is more than 85 percent".

In Panke, Davies J. expressly put to one side the position of a person "who, having been temporarily or partially incapacitated, is unable to re-enter the work-force because of economic conditions" or "a person who, having been temporarily incapacitated, is unable to obtain remunerative employment because of his advanced years".

It is clear that in Panke the view of the President was that the applicant was permanently incapacitated and that it was because of his medical condition that he was unable to obtain employment. In view of the decision reached by the Tribunal in the present case, it must be concluded that it was in effect distinguishing Panke on the ground that it was not the applicant's medical condition which precluded him from obtaining employment.

In Panke there was a lengthy judgment by Mr. Hall and Dr. Glick in the course of which they commented at p.195:

"The assessment of the degree of incapacity for work in fact involves two quite distinct steps - firstly an evaluation in purely medical terms of the person's physical or mental impairment and secondly, the ascertainment of the extent to which that physical or mental impairment affects the person's ability to engage in paid work . . . The first question is entirely within the competence of a suitably qualified medical practitioner. The second question, depending on the nature and extent of the physical impairment and the experience of the medical practitioner may not be".

The reasons of Davies J. and of Mr. Hall and Dr. Glick in Panke have been accepted by other members of the Administrative Appeals Tribunal in later decisions. See for instance Re Sheely and Director-General of Social Services No. N81/118 - 24 June 1982 and Re Ilich and Director-General of Social Security (1983) 5 ALN No. 77. They were also accepted by Fitzgerald J. in Howard v. Director-General of Social Security (unreported decision delivered 14 December 1983).

The question remains - in what respect is it said that the Tribunal erred in law? Had the Tribunal relied only on the assessments of Drs. Bedbrook and Nunn and ignored the extent to which the applicant's impairment affected his ability to engage in paid work, it would have acted contrary to the decision in Panke and the later decisions to which I have referred. But in my view the Tribunal did not adopt such a restricted approach. It is apparent that it took into account and relied heavily upon what it regarded as the applicant's inability to exploit his capacity for work due to depressed job opportunities and upon his lack of genuine interest in obtaining paid employment.

Whether or not that view was hard on the applicant, it was a view to which the Tribunal was entitled to come. The Tribunal saw the applicant, heard him give evidence and listened to him being cross-examined. It also heard Drs. Nunn and Bedbrook. Both considered the applicant fit for some forms of work; the latter was particularly critical about his lack of motivation where work was concerned.

Counsel for the applicant drew attention to an admission made by the respondent before the Tribunal. It was an admission made with a view to relieving the applicant of the need to call an employment officer. It was expressed to the Tribunal by counsel in this way:

"Mr. Smith is a specialist officer with the Department of Employment specializing in the placement of disabled work seekers. In his opinion a man of 55 with no formal qualifications has little prospect of finding employment in the area of Mr. Smith's experience in the Perth metropolitan region; a man of that age with a disability has no prospect of gaining employment; employers are reluctant to train older people and employers are sensitive to the risks of workers compensation insurance in taking on a disabled person".

It is certainly desirable to avoid the calling of unnecessary evidence but an admission in such general terms was arguably of little assistance to the Tribunal. In any event the question for the Tribunal was the incapacity of the applicant, assessed by reason of his medical condition, his willingness to work and the availability of employment.

In my view it has not been shown that the Tribunal failed to take into account all relevant considerations or that it proceeded on the basis of considerations that were irrelevant. It is not to the point that this Court might have reached a different conclusion. It must be said again that an appeal from the Administrative Appeals Tribunal to the Federal Court is an appeal on a question of law. It is not an appeal by way of rehearing nor is it a general review of the decision appealed from. The respondent did not contend that the appeal was incompetent and it is possible to find a question of law in the argument, implicit in the grounds of appeal, that the Tribunal misunderstood Panke. But I am not persuaded that the Tribunal did misunderstand that decision or any of the decisions in which it has been given approval. Furthermore, I am not persuaded that there was any error on the part of the Tribunal.

The appeal will be dismissed.