Scott and Department of Family and Community Services [1999] AATA 50 (29 January 1999)

Last Updated: 28 February 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 50

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N97/553

GENERAL ADMINISTRATIVE DIVISION )

Re GLENN SCOTT

Applicant

And DEPARTMENT OF FAMILY AND COMMUNITY SERVICES (Formerly Department Of Social Security)

Respondent

DECISION

Tribunal Dr J Campbell, Member

Date 29 January 1999

Place Sydney

Decision The decision under review is affirmed.

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

Dr J Campbell

Member

CATCHWORDS

Disability Support Pension - Impairments upper and lower limbs - pain syndrome - assessment - inability to work - definition of work - polar medical consultant opinion

Social Security Act 1991, Sections 94(1), (2) and (5)

REASONS FOR DECISION

29 January 1999 John. D. Campbell

Member

1. Mr Glenn Richard Scott, the Applicant in this matter, seeks a review of the decision of the Social Security Appeals Tribunal which on the 17th March 1997 affirmed the decision of an authorised review officer of the Department of Social Security dated 7 November 1996. This decision, in turn, affirmed the decision of an authorised delegate of the Secretary of the Department of Social Security dated 12 September 1996 to reject the Applicant's claim for disability support pension.

2. A hearing before the Tribunal was held on 2 March 1998 and 26 October 1998. A Work Capacity Assessment Report on the Applicant was undertaken between the two hearing dates.

3. The Tribunal had placed before it Section 37 documents prepared pursuant to the Administrative Appeals Tribunal Act 1975, T1-41.

Exhibit Number

Medical Report of Dr M Baz dated 23 July 1997 A1

Supplementary Report of Dr M Baz dated 20 October 1998 A2

Medical Reports (3) of Dr D Dixon dated 26 February, 31 March and 7 May 1998 A3

Medical Report of Dr P Harvey-Sutton dated 29 September 1997 R1

Work Capability Assessment Report for Mr Scott dated 3 July 1998 R2

Assessment Procedure Sheets R3

Curriculum Vitae Ms Crain R4

Report of Dr P Harvey-Sutton dated 20 May 1998 R5

4. The Tribunal heard evidence from Mr Glenn Richard Scott on 2 March 1998 and 26 October 1998, Dr Martin Baz, Ms Bernadette Crain and Dr Philippa Harvey-Sutton.

5. The Applicant was represented by Mr Vincent, counsel. The Respondent was represented by Mr Kenny, advocate.

Legislation

6. The relevant legislation is contained within Section 94(1), (2) and (5) of the Social Security Act 1991 (the Act), together with Schedule 1B of the Act.

Issues

7. The issues to be addressed in this matter are as follows:

a) whether Mr Scott has a physical, intellectual or psychiatric impairment and if so;

b) whether the assessment of the impairment is more than 20% and if so;

c) whether the Applicant has a continuing inability to work.

Applicant's Evidence

8. The Applicant was born on 29 November 1964. The Applicant, having completed Year 12 in 1981, pursued University studies for six months in 1982, before joining the Navy in that year. He served in the Navy as a seaman, undertaking duties as a radar plotter and the general duties of a seaman. He was medically discharged from the Navy in 1985, because of sleep walking. During his navy service injuries occurred to both ankles, with operative intervention to his right ankle.

9. Upon leaving the Navy the Applicant holidayed for three to four months after which he remained unemployed for two and a half years. During this period the Applicant stated that he had severe problems with his back, which appeared, based on specialist advice, to be related to scoliosis. The Applicant indicated that his back settled and he commenced working as a storeman at the Summit Restaurant in 1988. This job lasted for ten months, after which he worked as a barman at the 18 Footer Sailing Club at Double Bay, until it closed for renovations. He was next employed for eighteen months, until retrenched, as a storeman for Robert Green Imports. For six months in 1990, the Applicant was employed as a barman at the Captain Cook Hotel, leaving when the hotel changed hands. He next worked for a year as a storeman with Swatow Imports, until retrenched. In early 1993, he worked for three months as a storeman with Core Hardware Wholesalers, until the Company went into receivership.

10. The Applicant stated that he obtained a security licence in January 1992/1993 (although at T7 p21, the Applicant states this was obtained on 14 December 1991). Subsequent employment nominated included a period of eighteen months with Robert Blau as a storeman until early 1993, after which he was employed with Kings Cross Security as a security guard until late 1994. For the following three months he assisted his wife who worked for Yellow Express and City Link as a courier. The Applicant was next employed with Bremick Pty Ltd as a storeman for a period February 1995 to August 1995. The Applicant left this employment because of a pain/injury to his hands for which he underwent bilateral endoscopic carpal tunnel release in December 1995.

11. The Applicant indicated that he had a period of six weeks work experience with the human resources department at St Vincent's Hospital at the time of the Olympic Games in 1996. The work included filing, data entry, data search, all of which caused pain to his wrists and ankles, necessitating a period of absence of seven days during his period of work experience.

12. The Applicant stated that he had received a 60 per cent disability pension from Veterans Affairs since March 1996, arising from injury to his ankles during his Navy service. Further, the Applicant stated that he suffered from scoliosis of the back and rotator cuff impingement of the left shoulder, which occasionally irritate ("back I've learnt to live with", shoulder "average a week every two months"). Finally the Applicant indicated that he had a workers compensation claim outstanding in relation to the injury to his hands/wrists while working at Bremick in 1995.

13. The Applicant indicated that he had sat for and passed the Public Sector Examination in February 1996, but was unable to proceed to employment because neither his general practitioner nor his specialist would give the necessary assurance in writing, that his hands would handle any type of work. The Applicant further stated that while undertaking a computer training course in April 1996 of four weeks duration, he suffered from considerable aching in his hands when undertaking keyboard activity.

14. In further evidence the Applicant indicated that while in the past there has been no ankle swelling, of late there has been; that he takes Kapanol for pain together with Tegretol; that he has been attending the pain management clinic at St Vincent's Hospital, who prescribed the earlier nominated medication; that this medication was replaced gradually with Zoloft, which caused him diarrhoea; that he felt his symptoms of tiredness arose from the medication. Further the Applicant stated that because of increased difficulty with stairs, walking distances and the necessity to use a walking stick for support, he sought further orthopaedic opinion from Dr Drew Dickson in February 1998.

15. The Applicant stated that his daily activities involve reading, watching TV, and accompanying his wife in a car to watch her exercise the dogs at the local park. He stated that he has difficulties cleaning his teeth because of pain in the right wrist, shaves once a fortnight and that he has not driven for eighteen months because of pain in his ankles. He states he is able to undertake most domestic chores including washing, cooking, mopping, lifting and carrying. Further, the Applicant stated, he is experiencing increased difficulty with writing, things occasionally fall through his hands, and prolonged grasping of objects cause pain in his fingers.

16. The Applicant stated that he was keen to do any work he could do; was not adverse to retraining, but he has experienced much difficulty when he explains his current disabilities to prospective employers. Further attempts to secure a further appointment with the Commonwealth Rehabilitation Service have been denied.

17. In further evidence to the Tribunal on 26 October 1998, the Applicant stated that he and his family had moved to Grenfell in September 1998; that the pain in his left shoulder is getting better while that in his back is getting worse, to the point that at times he has to lie down three or four times a week; that the new home has no stairs and hence there are less problems, but he still uses a walking stick for support as well as the application of hand splints mostly at nights; that he experiences increasing pain with grasping; that since 12 June 1998 he has ceased attending the St Vincent's Hospital pain clinic "because they didn't think there was anything else they could do for me."

18. The Applicant acknowledged his attendance at the Newtown Assessment Unit for a Work Capability Assessment Report on the 15, 16 and 17 June 1998. Further he expressed his understanding of the methodology used to record his pain levels experienced before and after completing certain tasks. The Applicant confirmed that he was able to undertake the tasks nominated, but that each and every task performance caused an increase in pain experienced; that he pushed himself to complete the tasks while experiencing the increased pain levels; that he did not sleep much at night because of the pain in his hands.

Cross Examination

19. In cross examination the Applicant confirmed that he had applied for compensation for his ankles from the Department of Defence; that he had received weekly compensation payments for his hands until April 1996 and on advice at a later time, had pursued compensation for his hands/wrists; that he had pursued compensation for his sleep walking and back difficulties on leaving the Navy; that he denies not attempting to pursue rehabilitation training until the compensation issues are concluded; that he did show his fox terrier at Erskine Park on one occasion in July/August 1996; that the parting from the Commonwealth Rehabilitation Service occurred in late 1996; that he does assist his wife in episodic flower deliveries using their 1981 Ford Econovan; that he did change the oil on the van the day before he saw Dr Harvey-Sutton; that he was assisted by a friend, Gordon, if he were doing anything else as regards car maintenance.

20. The Applicant in response to specific questioning stated that he did not believe he could undertake security duties at a major club, as it would involve continual standing; that he could not undertake duties as an indoor car park attendant, as, in his experiences, the duties involved a range of activities beyond securing money; that he had never tried telemarketing or telesurvey work; that he had first attended the St Vincent's Hospital pain clinic in September 1997; that he has pain in his ankles and hands, with restricted movement in both ankles.

21. In further cross examination on 26 October 1998, the Applicant stated that he moved to Grenfell because of domestic and financial circumstances, as he had now received a compensation payment for the injury to his hands; that he had not fully considered the effect of the winter cold on his disabilities at the time of the decision to move to Grenfell; that the tasks which caused him most difficulty during the Work Assessment at Newtown in June 1998 were those involving standing, dexterous use of the fingers or excessive writing; that his life at Grenfell is preferable to life at Waterloo; that his daily activities are home dominated, with the family settling in to the new environment; that he continues to pursue his quest for work.

Medical Evidence

Dr Guirgis

22. Dr Guirgis, a consultant orthopaedic surgeon, reported on 1 June 1996 that the Applicant had post traumatic osteoarthritis of the left ankle caused by antero-lateral insufficiency following ligament injury in 1983 (T12, p34). Dr Guirgis further stated that the condition is permanent and will slowly deteriorate.

23. In a further report dated 20 June 1996, Dr Guirgis stated that the Applicant had post traumatic osteoarthritis in the right ankle caused by antero-lateral ligament insufficiency following a ligament injury in 1983 (T15, p48). Dr Guirgis further stated that the condition was permanent and would slowly deteriorate.

Dr Drew Dixon

24. Dr Drew Dixon, a consultant orthopaedic surgeon, reported on 26 February 1998 that the Applicant had suffered an inversion stress injury to his left ankle while playing cricket in 1984 and an injury to his right ankle requiring lateral ligament stabilisation in 1984. He further stated that the Applicant was complaining of increasing pain in both ankles and intermittent swelling. Dr Dixon concluded that he has significant arthralgia of both ankles, as evidenced by pain being experienced on a range of motion testing and on weight bearing, together with x-rays which showed ossicles adjacent to the medial malleolar bilaterally (Exhibit A3).

25. In a further report dated 31 March 1998, Dr Dixon stated that the right ankle was initially sprained on 7 March 1993. Further Dr Dixon indicated that the Applicant had a strain to his left ankle while playing cricket on 31 March 1983. Dr Dixon concluded that the Applicant has a moderate disability in both ankles (Exhibit A3).

26. In a third report dated 7 May 1998 (Exhibit A3) Dr Dixon concludes:

"The patient is totally incapacitated for work because of his left and right ankle conditions and is incapacitated for clerical duties because he has bilateral carpal tunnel symptoms not relieved by previous bilateral carpal tunnel decompression. He has developed night pain and paraesthesia in both hands."

Dr Ryan

27. Dr D Ryan, a consultant hand surgeon, in a report dated 20 December 1996 (T33, p120), indicated that the Applicant underwent bilateral-endoscopic carpal tunnel release on 6 December 1995, with good relief of his carpal tunnel type symptoms. However, Dr Ryan reports that the Applicant continued to report pain with use over the volar aspect of the wrist but also diffusely affecting the fingers and forearms. Dr Ryan opined that the continuing symptoms relate either to scarring associated with surgery or damage to his median nerve from his severe carpal tunnel syndrome. In summary at T34, p117 Dr Ryan concluded that his bilateral ankle arthritis was long term and limits his ability to stand or walk for a long time, while his bilateral carpal tunnel syndrome will cause persistent palmar pain restricting full use.

Dr AnneMarie Fulop

28. Dr Fulop, a consultant in rehabilitation medicine, reported on the 26 April 1996 (T11, p32), after consideration of presenting symptomatology, physical examination and review of radiology of the ankles, that the Applicant was fit for a wide array of light manual and non-repetitive occupations.

29. In a further reported dated 29 October 1996, (T30, p108) Dr Fulop opined that the Applicant may have a residual median nerve compromise; that he certainly exhibits heightened pain behaviour; suggests that a work capacity evaluation be undertaken at the Vocational Assessment Unit.

Dr Baz

30. Dr Baz, a consultant occupational physician examined the Applicant on 14 July 1997 and in her report dated 23 July 1997 (Exhibit A1) concluded that the Applicant experiences moderate disability as a result of the sequelae of carpal tunnel syndrome and degenerative joint disease of both ankles. Dr Baz found a combined impairment rating of 23%.

Dr Baz further opined:

"...Mr Scott's physical disabilities restrict him to sedentary work which allows occasional variation in posture and which does not involve repetitive or fine upper limb movements or use of the upper limbs above shoulder height. He should also avoid pushing and pulling, lifting and carrying as these activities are likely to exacerbate the upper limb symptoms."

31. Dr Baz suggested that certain mixed clerical and reception duties would be within his physical capacity and that participation in a vocational rehabilitation program which includes attention to pain coping techniques would be appropriate. Further Dr Baz suggested that the Applicant have a suitable vocational assessment with subsequent retraining to a physically appropriate work.

32. Dr Baz concluded that the Applicant, in her opinion, could not be considered to be permanently unfit, but was most unlikely to obtain regular work within the next two years; that his current impairments prevent him from being able to undertake educational and vocational training, and that it is her opinion that a combination of rehabilitation and retraining will not be completed within two years.

33. In a supplementary report (Exhibit A2) dated 20 October 1998, Dr Baz comments:

"I agree that Mr Scott's attitude to, and focus on, pain and disability needs to be effectively addressed.

...

In my opinion Mr Scott requires sufficient training to give him marketable work skills which offset employer concern regarding compensation risk, and allow him sufficient work place control to modify his environment to minimise symptom aggravation.

...

In my opinion a comprehensive rehabilitation program and training plan needs to be implemented. I do not consider that a program which will enable him to sustain employment in the long term will be completed within two years.

...

I consider him unfit for work of 30 hours a week, and that he is not likely to become fit within the next 2 years."

34. In oral evidence before the Tribunal, Dr Baz on 2 March 1998, reinforced the concept that a rehabilitation program in which he learns to use his hands in ways that do not stress the median nerve, and to recognise that he can do things without causing harm, is intrinsic to a successful retraining program; that the work/jobs nominated as possible by Dr Harvey-Sutton at p6 or Exhibit R1 all involve aspects which are likely to cause difficulty for the Applicant; that the period of 12-18 months retraining should be sufficient to enhance the Applicant's office skills after a minimum of six months in a rehabilitation program; that the rehabilitation program will consist of a vocational assessment, a program of psychological therapy to deal with pain and function and a program looking at flexibility and strength, particularly in the upper limbs.

Dr Harvey-Sutton

35. Dr Harvey-Sutton, a consultant occupational physician, examined the Applicant on 29 September 1997 and in her report (Exhibit R1) of the same date, Dr Harvey-Sutton concluded:

"Mr Scott reports pain in his right and left hands, although there is objective evidence that he does use both his hands sufficient to cause calluses.

As far as his ankles are concerned, there is almost a full range of movement ... There were signs of early degenerative change in the metatarsal joint bilaterally [recent x-ray 15 September 1997]. He reports limitations with walking upstairs, grades and distances, however he has well developed musculature.

I would note that he has full range of movement in the spine and left shoulder.

At this stage, I believe it would be appropriate that his condition of chronic pain in the joints can be considered permanent, although attendance at the Pain Management Clinic may well improve such.

...

I am of the opinion that the impairment of itself does not prevent Mr Scott from doing any work for at least 30 hours per week at award rates in the next two years.

...

The impairment of itself does not prevent Mr Scott from undertaking educational, vocational training or on-the-job training during the next two years."

36. Dr Harvey-Sutton considered the Applicant to have a combined impairment rating of 28%.

37. In a further report dated 20 May 1998 (Exhibit R5), Dr Harvey-Sutton notes that the screening pathology tests for arthritis were negative and that the attached sensory nerve conduction reports for the Applicant define a "mild impairment of sensory conduction in both median and ulnar nerves, minimally more in the medians" (Report 24 March 1998).

38. In oral evidence before the Tribunal on 26 October 1998, Dr Harvey-Sutton expressed the view that the Applicant would, with his current state of health and training, be able to do some administration duties, such as monitoring surveillance equipment in security work or working in a weighbridge station. Dr Harvey-Sutton, when cross examined in relation to back symptomatology, described by the Applicant at the hearing on 26 October 1998, stated that it would not alter her opinion as to the positions she has suggested the Applicant is capable of working in, and she would not modify his capacity to do a working week of 30 hours (some ambiguity in this response).

Ms B Crain

39. Ms Crain, a vocational assessor/rehabilitation consultant at the Newtown Assessment Unit of the Commonwealth Rehabilitation Service undertook a work capability assessment review of the Applicant on the 15, 16, 17 June 1998. In her report (Exhibit R2) dated 3 July 1998 Ms Crain concluded that:

"Collectively, utilising the three elements of the Work Capability Assessment, Mr Scott has demonstrated an ability to sustain the physical work demands and the applicable skill requirement for employment purposes that relate to a number of areas within the administrative and semi administrative field."

40. As a result of the assessment process, Ms Crain recommended that:

(1) "That demonstrated pain behaviour be addressed by pain management intervention for consideration towards a positive vocational outcome.

(2) That Mr Scott's focus on his stated disability be addressed by the appropriate professional so as he may present a positive image of himself to prospective employers.

(3) That Mr Scott has sufficient capabilities for consideration towards employment within the administrative field. The following areas should be considered: -

* Australian Taxation Office.

* State Rail Authority.

* State Electoral Office.

* Medicare.

It is important to note that within a numerical environment, Mr Scott would excel.

(4) That Mr Scott could also be considered for employment in such areas where cash transactions are performed. The following are areas for consideration: -

* Energy Australia

* Sydney Water

* AGL

(5) Mr Scott could also be considered for employment within the TAB as a Phone Tab Operator (In house training is provided) or as an Administrative Officer.

(6) That Mr Scott has demonstrated realistic employment skills and the sustained physical stamina for consideration towards full time employment greater than 30 hours per week."

41. In oral evidence before the Tribunal on the 26 October 1998, Ms Crain indicated that she had been conducting work capability assessments since 1991; that a work capability assessment focuses on three aspects, namely the skill level of the person being assessed, the ability to physically be able to perform the task and work related behaviour, namely attitude to task and general level of presentation.

42. Ms Crain stated that in her opinion that "Mr Scott has the applicable skill level and the physical tolerance to perform the task and I fell yes, he is job ready."

"...He has ample skills, that does not require training.

...

I feel that if he comes to terms with his own perception of his own abilities and sees himself as a worker that would be a really good thing." (Pain Management Counselling)

43. In response to questions relating to the Applicant's pain response, graphed during the performance of the assessment over the three days, Ms Crain indicated that there were physical manifestations (redfaced) of the Applicant's subjective recording of pain, and that depending on the Applicant's own concept as an employee, pain management counselling could be undertaken either before or during a process of seeking employment.

Submissions

44. Counsel for the Applicant submitted that the matter is much involved with the issue of the Applicant's symptomatology of variable pain. This pain is variable in site (ankles, wrists, back, left shoulder) and is variable in intensity depending on activity, to the point that continued activity is unsustainable at a particular reference point for doing the task.

45. Counsel further submitted that all the medical evidence concluded that the Applicant did suffer pain, with the difference between the parties being that the Applicant contended the pain would prevent him undertaking suitable employment, while the Respondent's medical evidence could be analysed as suggesting that, irrespective of the pain, employment could be sustained in particular areas of work, particularly if the Applicant had been subject to counselling or pain management strategies.

46. Irrespective of the differing opinions, Counsel submitted that the real question to be answered is whether the Applicant is going to be able to resume, and undertake, work within the two year time frame. The evidence, on past experience over the last eighteen months, as to whether the Applicant is likely to cope, coupled with the factual evidence that work activity increases his pain levels, demonstrates in the Applicant's Counsel's opinion that the Applicant will not be able to resume or undertake work within the two year time frame.

Respondent

47. The Advocate for the Respondent submits that the issue in this matter is whether the Applicant's impairments prevent him from doing any work in the next two years. The Respondent submits that the evidence of what the Applicant has described he can do and what he has been doing over the last eighteen months, his demonstrated physical attributes, including hand calluses and movements of back and ankle joints at various medical examinations over a similar time frame, his appearance, movements and lack of discomfort at the hearing, the professional opinion of Ms Crain, and after analysing the work activities and skills of the Applicant over three days, and hearing evidence in relation to Dr Harvey-Sutton's model of the work place being more contemporary, all lead towards the inference that the Applicant can be employed within a two year time frame.

Considerations and Findings

48. The Tribunal, by way of introductory comment, is mindful of the many difficulties inherent in a matter, when on a composite set of facts, diametrically opposed professional opinions are proffered as to how, if at all, an individual with a nominated set of injuries and symptoms, will cope in the workplace over a period of two years in the future. The difficulties, in the Tribunal's opinion, are further compounded when a significant aspect of the clinical picture is the clinical symptom of pain.

49. The Tribunal considers the Applicant to be an articulate and intelligent person, with a self confessed difficulty with memory for dates and times. Further the Tribunal observes that the Applicant describes himself as a home person, having difficulty making and holding friends. Further, the Tribunal understands the economic rationality of purchasing a house in Grenfell during the course of the proceedings, and, in turn, while drawing no adverse inference, is concerned that such a move, while having significant domestic and lifestyle benefits, will limit the Applicant's range and quantity of job opportunities with the potential for the winter months to elevate the level of his pain symptomatology.

50. The relevant legislation in this matter is section 94(1), (2) and (5) of the Social Security Act 1991, hereafter referred to as the Act.

"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;

...

(d) the person has turned 16; and

...

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.(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."

51. The Tribunal notes that all the medical reports in this matter agree that the Applicant has the following medical conditions:

* Post traumatic osteoarthritis of both ankles

* Painful hands, wrists and forearms, after endoscopic surgery for bilateral carpal tunnel syndrome in 1995.

* Scoliosis of the back

* Rotator cuff injury to left shoulder.

52. The Tribunal notes that the three orthopaedic surgeons (Drs Guirgis, Dixon and Ryan) all conclude that the Applicant has these disabilities, as does the three occupational or rehabilitation physicians (Drs Fulop, Baz and Harvey-Sutton). Further, all consider the disabilities to be permanent and in the case of the ankle osteoarthritis likely to deteriorate over time. As such the Tribunal finds that the Applicant has a physical impairment as required by Section 94(1)(a) of the Act.

53. The Tribunal notes that both Dr Baz and Dr Harvey-Sutton assess the Applicant's impairment at more than 20% under the Impairment Tables, and further that there is no argument on this point between the parties. Accordingly the Tribunal finds that Section 94(1)(b) of the Act is satisfied.

54. In considering Section 94(1)(c) of the Act, the Tribunal observes that Section 94(2) defines the circumstances which must be satisfied for a person to be considered to having a continuing inability to work. These circumstances specifically detail that

(1) the impairment itself is sufficient to prevent the person from doing any work for within two years; and

(2) (a) the impairment itself is sufficient to prevent the person from undertaking educational or vocational or on the job training during the next two years; or

(b) that such training is unlikely, because of the impairment, to enable the person to do any work within the next two years, despite the impairment in itself not preventing a person from undertaking such training.

55. Further the Tribunal notes the definition section 94(5) of the Act, which defines work as at least thirty hours per week at award rates or above and which exists in Australia as opposed to a person's locally accessible labour market.

56. In considering all the issues outlined, the Tribunal, while noting the Applicant's impairments, considers that the main clinical issue in this matter is the Applicant's perception and complaint of pain. All the clinical reports refer to this as the significant issue, and Drs Baz, Fulop, Harvey-Sutton and Ms Crain consider that this is a matter for primary attention. The Tribunal observes that each of the specialists, in giving consideration as to what form of work activity the Applicant could undertake, has accepted that increased utilisation of the impaired limb(s) will elevate the pain level experienced by the Applicant. This, in turn, has led to a number of semi sedentary administrative positions being suggested as suitable areas of employment for the Applicant.

57. The Tribunal is mindful that both Dr Baz and Dr Harvey-Sutton have seen the Applicant for limited periods of time, and their reports reflect their opinion after such an exposure. Both agree that pain, and the management of pain, is a significant issue. Both generally agree as to the type of workplace activities which will increase the Applicant's pain difficulties. Dr Baz does not believe the Applicant to be permanently unfit for work, but with pain management, vocational training and a rehabilitation program, the Applicant should be able to return to the work force in an appropriate capacity. This however, will, in Dr Baz's opinion, not occur within a two year time frame. Dr Baz further considers the Applicant to be currently unfit for work as defined with Section 94(5) of the Act.

58. Dr Harvey-Sutton, in addressing the same set of issues concludes that pain management is an issue, but overall, in her opinion, the impairments themselves do not prevent the Applicant from undertaking work or undertaking educational, vocational or on-the-job training as defined in Section 94(5) of the Act, within the next two years. Dr Harvey-Sutton suggests that the Applicant could undertake semi-administrative work in the form of a weigh bridge operator or monitoring surveillance equipment in the security industry.

59. The Tribunal has also given consideration to the reports of Dr Fulop in which she concludes that the Applicant was fit for a wide variety of light manual and non repetitive occupations. She also observed that the Applicant has a heightened pain behaviour and suggested that a work capacity evaluation be undertaken.

60. The Tribunal observes that this work capability assessment review was undertaken in June 1998 over three, six hour days by Ms Crain of the Commonwealth Rehabilitation Service. In her report Ms Crain stressed that the Applicant required pain management intervention and counselling, but nevertheless "enjoyed sufficient capabilities for consideration towards employment within the administrative field" or in such areas where cash transactions are performed. Ms Crain considered the Applicant "to have demonstrated realistic employment skills and the sustained physical stamina towards full time employment greater than thirty hours a week."

61. The Tribunal also noted Ms Crain's statements given in oral evidence namely "Mr Scott has the applicable skill levels and the physical tolerance to perform the tasks and I feel yes his is job ready... he has ample skills that not require training."

62. The Tribunal in drawing together these various and varied opinions concludes that the Applicant does not require any educational or vocational training or on the job training for his return to work. Such a conclusion gives weight to the professional opinion of Drs Fulop and Harvey-Sutton and more importantly to that of Ms Crain who worked closely and intensively with the Applicant over three days in an area of her specific expertise. The Tribunal considered that Dr Baz's comments were more to do with an overall change in career direction, allowing the Applicant to develop new skills which would more than likely sustain employment over the longer term. As such the Tribunal could only infer that Dr Baz considered the Applicant not to have the necessary skills currently to obtain and sustain employment within the next two years. For the reasons referred to above, the Tribunal considers that the weight of evidence supports the conclusion that the Applicant does not require any further educational, vocational or on the job training for his return to the work force.

63. As a consequence of this conclusion that such training is not necessary, it would appear to the Tribunal, that if such training is not necessary, then it is difficult to satisfy sections 94(2)(b)(i) or (ii) of the Act, unless one is to address the matter in the light of a hypothetical training requirement.

64. The Tribunal, on turning to the remaining and perhaps most significant issue, notes that all the medical reports highlight pain and pain management as matters of particular import. The Tribunal considers the pain to be a symptom of the impairments and that the presence of pain, and the management of that pain, is a significant issue as to whether the Applicant is, and will be, prevented from doing any work within the next two years.

65. In considering this matter, the Tribunal observes that there is objective evidence to support the presence of the pain (Ms Crain's recognition during the work assessment). Nevertheless the Tribunal notes that the presence of pain, however defined, did not prevent the Applicant from completing all aspects of his work assessment in a more than satisfactory manner. That there is a requirement for assistance and a properly developed rehabilitation program to assist with the Applicant's management of pain is not in argument, for it would seem to the Tribunal that this is necessary to assist in a satisfactory long term return to the work force.

66. However the weight of evidence, as the Tribunal assesses it, indicates that the Applicant is currently job ready. Dr Baz considers the Applicant to require significant training and rehabilitation programmes, including pain management interventions, before the Applicant is 'job ready'. This is not the opinion of Drs Fulop, Harvey-Sutton and Ms Crain.

67. The Tribunal, relying upon the work assessment of Ms Crain and the opinions of Drs Fulop and Harvey-Sutton considers that the impairment of the Applicant is, in itself, not sufficient to prevent the Applicant from doing any work, as defined in Section 94(5)(a)(b) of the Act, within the next two years.

68. The Tribunal further considers that the Applicant should be party to a suitable pain management program to facilitate both his desire and ability to cope with the discomfort/pain of an ongoing work program.

69. Further the Tribunal, having considered the range of administrative and semi-administrative work place employment nominated by both Ms Crain and Dr Harvey-Sutton, that would be suitable for the Applicant in the light of his current impairments, is satisfied that there exists work for the Applicant within the meaning of Section 94(5)(b) of the Act.

70. Thus, for the reasons stated in the previous paragraphs, the Tribunal concludes that the Applicant is not entitled to a disability support pension. In so finding, the Tribunal concludes that:

i) there exists work in Australia that the Applicant could undertake (Section 94(5)(b))

ii) the Applicant is able to work for at least 30 hours per week at award wages or above (Section 94(5)(a))

iii) the Applicant does not have a continuing inability to work because:

a) the impairments within themselves are not sufficient to prevent the Applicant from doing any work within the next two years (Section 94(2)(a))

b) the impairments within themselves are not sufficient to prevent the Applicant from undertaking educational or vocational training or on the job training during the next two years (if it were required) (Section 94(2)(b)(i))

c) such training (if it were required) is likely to enable the Applicant to do work within the next two years, notwithstanding the effects of the impairments (Section 94(2)(b)(ii))

iv) the Applicant, notwithstanding his impairment, does not have a continuing inability to work (Section 94(1)(c))

Determination

71. The decision under review is affirmed.

I certify that this and the 22 preceding pages are a true copy of the decision and reasons for decision herein of

Dr J D Campbell

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

Associate

Date/s of Hearing 2 March & 26 October 1998

Date of Decision 29 January 1999

Counsel for the Applicant Mr Vincent

Solicitor for the Applicant Legal Aid Commission

Advocate for the Respondent Mr Kenny