Attallah and Department of Family and Community Services [1999] AATA 359 (27 May 1999)

Last Updated: 28 May 1999

DECISION AND REASONS FOR DECISION [1999] AATA 359

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/1705

GENERAL ADMINISTRATIVE DIVISION )

Re Noura ATTALLAH

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 27 May 1999

Place Sydney

Decision The Tribunal sets aside the decision under review and substitutes therefor its decision that the Applicant at all relevant times has remained qualified for disability support pension.

..............................................

M T Lewis

Senior Member

CATCHWORDS

SOCIAL SECURITY - cancellation of disability support pension - motor vehicle accident in 1991 - ongoing chronic pain - assessment of impairment - whether 1991 Tables or 1997 Tables apply - application of 1997 Impairment Tables considered - Applicant has impairment of at least 20 points under both 1991 and 1997 Tables - continuing inability to work - whether fit for light work of at least 30 hours per week

Social Security Act 1991 - ss 94,105(1), Schedule 1A, Schedule 1B

Social Security and Veterans' Affairs Legislation Amendment (Family and Other Measures) Act 1997 - Schedule 16

Acts Interpretation Act 1901 - ss 15AA, 15AB

Lindner v Wright (1976) 14 ALR 105

Sandvik Australia Pty Ltd v Commonwealth (1989) 89 ALR 213

REASONS FOR DECISION

27 May 1999 Mrs M T Lewis, Senior Member

1. This is an application lodged by Noura Attallah ("the Applicant") for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 14 November 1997 (T2) which affirmed a decision of a delegate of the Secretary, Department of Social Security ("the Respondent") made on 8 September 1997 (T62) and affirmed by an authorised review officer on 16 October 1997 (T65) to cancel the Applicant's disability support pension ("DSP").

2. The Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (exhibit T1). The following documents were tendered as evidence on behalf of the Applicant -

* Report of Dr M G Baz dated 24 July 1998 (exhibit A)

* Applicant's Curriculum Vitae (exhibit B)

* Applicant's Training Certificates from TAFE (exhibit C)

* Documents and correspondence regarding various job applications of the Applicant (exhibit D)

3. Additionally, the Respondent tendered sundry computer records from Centrelink (exhibit 1). At the hearing the Applicant gave oral evidence. Dr M Baz gave oral evidence on behalf of the Applicant.

background

4. The Applicant was born in Cyprus on 2 June 1954 and came to Australia on 22 September 1970. She completed the School Certificate after arriving in Australia. She has clerical, secretarial and computing skills. She was injured in a motor vehicle accident in March 1991, suffering a whiplash injury to her neck. After being off work for six to eight weeks she returned to work part-time. She said that she had more days off then than at work before she was retrenched from her employment in September 1991. She then received Sickness Benefit and/or Sickness Allowance and undertook a few part-time courses at TAFE, which she said she found difficult because of problems with concentration. She said that she had some time off from her courses, but she managed to complete them. She did courses in Spanish, bookkeeping, small business, computing, travel and tourism (exhibit C). Because of her poor attendance and concentration she has had to re-sit some of the examinations for the travel and tourism course. She is about half way through the course and she plans to complete it. In about 1993, while she was doing some of these courses, she tried to undertake some work from home, but she found that very competitive. More recently the Applicant commenced a course in accountancy, but she said she discontinued that because she could not concentrate.

5. The Applicant lodged an application for DSP on 15 April 1993 which ultimately was granted by the SSAT on 25 January 1994. From 13 November 1995 to 22 December 1995 the Applicant worked four hours per day for Star Personnel. On 2 January 1996 she commenced work as a receptionist at Solvay Interox, a chemical company, working 20 hours per week, which she continued until 19 September 1997. It would appear that she continued undertaking part-time study during this period of part-time employment.

6. The Applicant said that she found working as a receptionist a bit hard because she needed to get up and walk around from time to time, but she was required to stay in the reception area. She said that over a period of one year she had about forty days off work. She worked each afternoon, and somebody else worked each morning. She said that her manager was sympathetic, but then a new manager arrived and objected to the Applicant taking time off and her workload increased. The Applicant resigned after a confrontation with the new manager. During that period of part-time employment she had an operation for carpal tunnel. She said she had tried to increase her hours while working in that position, but her neck and back pain increased and she was unable to continue with the additional hours.

7. The Applicant said that since she ceased work she has applied for a large number of part-time positions, but she has not been successful (exhibit D).

8. The Applicant said that when her neck pain is very intense the pain goes down to her left shoulder and sometimes she has numbness in her left fingers. The numbness involved the lower part of all fingers and thumb of her left hand, both front and back. She becomes depressed because of her pain, at which times she said "I just sit in a corner and cry". That could last for a period of two or three days, and then "I'll be fine for a couple of weeks". She said that over a period of a month she is depressed about fifty percent of the time. She also said that she has been more depressed over the past two years since she has not been working. She said that she was referred to a psychiatrist in relation to her compensation litigation, but not otherwise. She has been treated by her local doctor for depression with Allegron. She is taking medication regularly for pain relief which she understands is now having a negative effect on her liver function. She said that following the carpal tunnel operation she has had no further symptoms.

9. The Applicant said in cross-examination that since 18 September 1998 she has not been receiving any social security payment. She said that previously she had received newstart allowance and was able to supply medical certificates, but then the Respondent rejected her medical certificates and cancelled her payment because she was not looking for work. She said that she did not appeal because she had this matter on foot before the Tribunal. She had some savings, and her mother also assisted her financially.

10. The Applicant said that in 1992 she had been assessed by the Commonwealth Rehabilitation Service who refused to assist her because she did not have a permanent condition and she was seeking to start her own business. She was referred to a new enterprise program ("NEESE") which assisted people who wished to start their own business, but her application there was rejected.

11. The Applicant said that she drives for short distances only, and she uses a back support. She said that she is unable to do any gardening, but although her mother does most of the vacuum cleaning she can do light vacuum cleaning and general house cleaning. She said also that a friend helps with the housework. She likes reading and tapestry, but finds it difficult because of her neck pain.

12. The Applicant said that her only relative is her mother with whom she lives. Her mother is aged 73 years and had coronary bypass surgery some three years ago from which she has recovered completely. She said that all their friends live in the western suburbs, so they come to visit the Applicant - she does not go to them. She has no other social activities, and she said that she has not been out socially for months. At another part of her evidence, however, she said that she had a few friends who lived nearby, and she used to visit them once a week.

13. The Applicant's native language is French. She said she had thought about work as an interpreter, but she did not know how to go about obtaining such work.

14. The Applicant said that her accident insurance case was settled in 1995, and after paying legal costs she received $8,000 "because Workers' Compensation took most of it back".

15. Dr M Baz, occupational health physician, gave oral evidence at the hearing. Using the 1997 impairment tables in Schedule 1B, as amended, Dr Baz made a combined assessment of 30 impairment points, whereas when using the 1991 Schedule 1B tables she assessed 31 impairment points. In her report dated 24 July 1998 (exhibit A) Dr Baz diagnosed cervical soft tissue injury causing significant on-going restriction to the Applicant's work capacity. She considered that the Applicant's description of pain and physical limitation was consistent with a need for repeated breaks from her work as a receptionist in order to minimise exacerbation of symptoms. Moreover, Dr Baz considered that exacerbations of the Applicant's neck pain and headache would lead to an unacceptable level of absenteeism if she was employed on a full-time basis. Dr Baz considered that the Applicant's chronic neck pain was intractable, and could continue "for many years" after the initial injury. Dr Baz opined that either the Applicant has ongoing soft-tissue pathology or she has a chronic pain syndrome.

16. Dr Baz considered that even if the Applicant was to be placed in part-time work she would need to be assisted by a special rehabilitation program designed to place disabled or injured employees. She considered that the Applicant was motivated to do work within her limited capacity. While rehabilitation may assist her to increase her work beyond 20 hours per week, Dr Baz considered that the Applicant was not likely to achieve that because of the length of time since the injury and the presence of chronic pain and depression. Dr Baz noted that already the Applicant had been able to keep up her work skills by doing courses, and she did not think that additional training would help. In cross-examination Dr Baz opined that even if the Applicant was self-employed she would not be able to work for 30 hours per week. Even if she was to work as an interpreter Dr Baz said that the Applicant would suffer exacerbations of neck pain and headache which would affect her ability to attend regularly.

17. Dr Baz considered that the minimal treatment for pain and depression which the Applicant has had, has not helped her. She doubted that a pain management centre was appropriate for her, but she thought that a regular rehabilitation centre with the opportunity for psychiatric referral and treatment for depression was worth trying. Dr Baz was then asked by the Tribunal -

Q. And if that was to be implemented, do you consider that within a space of two years she is likely to be able to work 30 hours a week?

A. I actually don't think it is likely. I think it is worthwhile trying because it is possible, and because it might enable her to work to some degree. But my experience of people with chronic pain, people who have had pain for this length of time, is that it doesn't improve enough to go back to work of more than 30 hours a week.

18. In her report (exhibit A) Dr Baz noted that X-rays of the cervical spine on 28 March 1991 were normal, and there were no significant findings recorded on a CT of her head dated 27 February 1992. In her oral evidence Dr Baz said that from the description given by the Applicant in her evidence about the distribution of numbness in the fingers of her left hand this crosses over three dermatomal distributions, and therefore it was unlikely that there was a single level in the cervical spine causing her problem. Dr Baz said that while there were features of secondary gain in the Applicant's presentation, her symptoms and how they affected her daily activities were consistent with a whiplash injury. She considered the Applicant to be genuine.

19. The Applicant's DSP was reviewed on 24 January 1996, and on the basis of medical evidence from Dr Janus, her general medical practitioner, DSP was continued. A further review of the Applicant's DSP was commenced on 18 April 1997 and ultimately it was cancelled on 8 September 1997. It is that decision, which was reviewed and affirmed by an ARO on 16 October 1997, and by the SSAT on 27 November 1997, which is now the subject of this review. The primary decision to cancel DSP was made on the basis that the Applicant was fit for light work of at least thirty hours per week. The ARO decided that the Applicant had an impairment of less than 20 percent. The SSAT found that the Applicant had an impairment rating of more than 20 percent, but that she did not have a continuing inability to work within the meaning of s 94(2) of the Social Security Act 1991 ("the Act").

the legislation

20. Eligibility for the DSP is determined pursuant to s 94 of the Act. Insofar as is relevant in this matter, s 94 provides -

(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.

.....

(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 raining 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.

......

(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.

21. The Impairment Tables referred to in s 94(1) are to be found in Schedule 1B of the Act which was amended by the Social Security and Veterans' Affairs Legislation Amendment (Family and Other Measures) Act 1997 ("the amending Act"). Item 4 of Schedule 16 of the amending Act inserted new Tables ("the 1997 Tables") into Schedule 1B of the Act.

22. Clause 96A of Schedule 1A, as amended by the amending Act, seeks to prescribe the application of the 1997 Tables. Clause 96A provides -

96A Application of revised Schedule 1B

(1) Subject to subclause (2), this Act, as amended by items 1, 2 and 4 of Schedule 14A of the amending Act, applies to claims lodged on or after the date of commencement of those items.

(2) Despite section 8 of the Acts Interpretation Act 1901, the amendments made by items 1, 2 and 4 of Schedule 14A to the amending Act, apply in relation to:

(a) all medical, psychiatric or psychological examinations attended, or reports required, under subsection 105(1) on or after the date of commencement of those items; and

(b) all legal proceedings, applications for review of decisions, or determinations, to the extent that the proceedings, applications or determinations relate to, or involve, a medical, psychiatric or psychological examination referred to in paragraph (a).

(3) In this clause:

amending Act means the Social Security Legislation Amendment (Family and Other Measures) Act 1997.

23. Section 105 provides -

(1) A disability support pension is not payable to a person if:

(a) the person is receiving a disability support pension; and

(b) the Secretary is of the opinion that the person should:

(i) contact a specified officer of the Department; or

(ii) attend an interview at a specified place; or

(iii) complete a questionnaire; or

(iv) attend a medical, psychiatric or psychological examination; and

(c) the Secretary notifies the person that the person is required to:

(i) contact that officer; or

(ii) attend that interview; or

(iii) complete that questionnaire; or

(iv) attend that examination; or

(v) if the person has undergone an examination - provide to the Secretary a report on that examination in the approved form; and

(d) the Secretary is satisfied that it is reasonable for this section to apply to the person; and

(e) the person does not take reasonable steps to comply with the Secretary's requirements within the time specified in the notice.

(2) A notice under paragraph (1)(c) must be in writing and must inform the person of the effect of this section.

24. A problem arises in that Clause 96A refers to Schedule 14A, and there is no Schedule 14A in the amending Act. In going to Schedule 16 of the amending Act the same error is reproduced, that is, that reference is made to Schedule 14A in subsections (1) and (2). A further error is the reference in Clause 96(3) to the Social Security Legislation Amendment (Family and Other Measures) Act 1997 as the "amending Act". The Tribunal must consider whether, in this matter, it should apply the old or the new Schedule 1B. The parties were asked by the Tribunal to provide evidence about impairment assessment in respect of both the old and the new tables, and to make submissions on the relevant legal issues arising from the amending Act.

assessment of impairment

25. Applying the 1991 impairment tables it was conceded for the Respondent that the Applicant has reached the required 20 impairment points. It was submitted for the Applicant that she reached at least 20 impairment points when assessed against both the old and the new Schedule 1B to the Act, and therefore the issue of which one should be applied has no material effect.

26. Having said that, and to assist the Tribunal, it was submitted for the Applicant that the Tribunal probably had the power under ss. 15AA and 15AB of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"), and the duty, to interpret clause 96A of Schedule 16 of the amending Act in such a way as to correct the error referring to a non-existent "Schedule 14A" if that was all that was required to give effect to the object of the amending Act: Lindner v Wright (1976) 14 ALR 105; Sandvik Australia P/L v Commonwealth (1989) 89 ALR 213 at 216. However, it was submitted that further peculiarities of clause 96A rendered such a solution impossible.

27. It was submitted for the Applicant that paragraph (a) of sub-clause 96A(2) confines itself to applying only to proceedings, applications or determinations relating to examinations undertaken under s 105(1) of the Act, since paragraph (b) refers back to paragraph (a). Clause 96A(2) does not have anything to say about medical examinations other than s 105 examinations. This suggests that those who drafted the legislative amendment did not consider the possible occurrence of medical examinations such as those undertaken by an applicant before this Tribunal. Hence the 1997 tables would need to be used in some circumstances and the 1991 tables in others, in the same matter. It was submitted that in the absence of some other "contrary intention" appearing in the amending legislation, as is required by s 8 of the Interpretation Act, an application such as the present one would have the benefit of s 8, as it is well-accepted that in applying for a social security pension an applicant acquires a right and that right thereby accrues in the applicant.

28. It was submitted that the preferable view is that no contrary intention is expressed in the Act, and that that view is strengthened as clause 96A(2) of the amending Act specifically provides for an intention to oust the terms of s 8 of the Interpretation Act in respect of s 105 examinations but not other medical examinations.

29. It was submitted that the end result of confining the application of the 1997 tables to s 105 examinations would produce an absurd situation if an applicant was to be assessed under both sets of tables depending on whether or not the assessment was pursuant to s 105. It was submitted that if assessment under the 1997 tables did not disadvantage an applicant, then an applicant's accrued right would not be affected, and the Tribunal would be free to apply the 1997 tables. In respect of this application it was submitted that nothing turns on which set of tables is used and therefore the Applicant does not need the protection of s 8 of the Interpretation Act. It was submitted that in this matter the Tribunal may make findings using both sets of tables, but that as a matter of law only the 1991 tables are able to be applied.

30. In essence the Respondent agreed with the submissions of the Applicant. However, it was submitted that the amendment to Schedule 1B did not become law until 1 April 1998, that being a date after the examination of the Applicant by the Commonwealth Medical Officer on 18 August 1997. The Tribunal was reminded that medical examinations referred to in Clause 96A(2) are limited to those under s 105(1) of the Act. Dr Baz had regard to the 1991 tables in her report, and it was submitted that in this case those were the correct tables to be used. The Tribunal does not need to consider the application of Clause 96A(2) in deciding this application. If a person seeks review of a decision relating to DSP which was based on a medical examination prior to 1 April 1998, thereby having regard to the 1991 tables, then such person has an 'accrued right' under s 8(c) of the Interpretations Act to have such review consider any further medical reports using the 1991 tables.

31. On the basis of Dr Baz's evidence, which the Tribunal accepts, the Applicant has had a cervical soft tissue injury causing ongoing chronic pain, restricting her work capacity. Because of the Applicant's pain she also suffers from depression, which in turn may have a negative effect on her pain. This constitutes a physical and psychiatric impairment for the purpose of s 94(1)(a) of the Act. Again on the basis of Dr Baz's evidence, using either the old or the new Schedule 1B, the Applicant has an impairment of 20 points or more, and therefore she meets the requirements of s 94(1)(b) of the Act. Having considered the submissions of the parties the Tribunal is inclined to the view that the old Schedule 1B should be applied in this instance, but fortuitously as the Applicant meets the requirements of both the old and the new tables, the Tribunal does not need to determine the legal issues which arise as a result of the amending Act, and which remain unresolved.

continuing inability to work

32. It was submitted for the Applicant that she has been motivated to do a range of courses to improve her skills in order to obtain suitable employment within the limitations of her physical restrictions. She has also obtained and sustained part-time employment of twenty hours per week for an extended period and has also demonstrated that when she has attempted to increase her work beyond twenty hours per week she has been unable to do so. It was submitted that twenty hours per week was her "natural level of employability" and that was significantly lower than the thirty hours per week which the Respondent asserts she should be able to achieve on a regular basis. The Applicant's primary problem is the pain, which has both a mental and a physical element to it, and her capacity to cope with it.

33. It was submitted for the Respondent that while the Applicant had been working twenty hours per week while awaiting carpal tunnel surgery she obtained good results from the surgery subsequently and she left her position because of disagreements with management over job sharing arrangements and not specifically due to her injuries. In reply, it was submitted for the Applicant that she left her last employment because of her medical problems which led to difficulties which she had with the new manager. Therefore, her ceasing work should not be characterised as a personality dispute with her manager. Moreover, Counsel for the Applicant noted that the Applicant returned to work after having the carpal tunnel surgery. It was not true to say that she left her employment while awaiting the surgery.

34. It was submitted for the Respondent that the Applicant would be able to undertake the NAATI 3 examinations and perform work as a French interpreter because of her fluency in that language, and that she would be able to perform such work for thirty hours per week without undue aggravation of her injuries.

35. The Tribunal finds that the Applicant's history of long-term part-time work in the face of continued pain is commendable. While the Applicant was undertaking courses during the period of her part-time employment, the Tribunal is not inclined to conclude that her course attendance indicated an ability to extend her hours of employment. It was the Applicant's evidence that she was often unable to attend her courses because of pain, and that she had difficulty in concentrating on some courses. This does not suggest an ability to extend the hours of her employment where regular attendance is required, together with a capacity to concentrate on her work. The Tribunal accepts Dr Baz's evidence that twenty hours per week work on a daily basis is about the maximum which the Applicant is likely to achieve. The Respondent's suggestion that the Applicant could work as a French interpreter for thirty hours per week is unrealistic. This requires regular attendance and careful concentration, and her ability to get up and move around during her work as an interpreter would be much more restricted than when working as a receptionist.

36. The Tribunal finds that the Applicant has a continued inability to work for more than twenty hours per week within the next two years. The impairment is not of itself sufficient to prevent the Applicant from undertaking educational or vocational training or on-the-job training during the next two years. However, such training is unlikely, because of the Applicant's ongoing chronic pain, to enable her to work for more than twenty hours per week within the next two years.

37. On the evidence of Dr Baz, which the Tribunal accepts, it is possible but not probable that the Applicant might respond favourably to rehabilitation and psychiatric treatment. If there is any chance of the Applicant returning to full-time work, or even extending her work to thirty hours per week, then the pursuit of Dr Baz's recommendation may have some benefit.

38. On the basis of the Tribunal's findings the decision under review will be set aside, and in substitution the Tribunal will decide that pursuant to s 94 of the Act the Applicant is qualified for DSP and has been so qualified since payment to her ceased from the pay day on 2 October 1997.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis,

Senior Member

Signed: .....................................................................................

Associate

Date/s of Hearing 19 January 1999

Date of Decision 27 May 1999

Counsel for the Applicant Mark Vincent

Solicitor for Applicant Simon Jeans, Legal Aid NSW

Counsel for the Respondent N/A

Advocate for the Respondent Cheryl Collis, Admin Law Section Centrelink