Jorquera and Department of Family and Community Services [2000] AATA 48 (31 January 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 48

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1058

GENERAL ADMINISTRATIVE DIVISION )

Re JORGE JORQUERA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J.T.C. Brassil, AM, Member

Date 31 January 2000

Place Melbourne

Decision That the decision under review be set aside and substituted therefor a decision that the applicant is eligible for the grant of a Disability Support Pension.

(Sgd.) J.T.C. Brassil

Member

CATCHWORDS

SOCIAL SECURITY - Disability Support pension -- continuing inability to work

Social Security Act 1991 - Subsections 94(1)(c),94(2), 94(3)

REASONS FOR DECISION

31 January 2000 Mr J.T.C. Brassil, AM, Member

1. This application is for review of a decision of the Social Security Appeals Tribunal on 17 August 1999 which affirmed a decision of an authorised review officer on 17 May 1999 to reject the claim for Disability Support Pension (DSP) made by the applicant on 4 March 1999.

2. At the hearing on 10 December 1999 the applicant was assisted by his wife, in the absence of a Spanish interpreter, and the respondent was represented by departmental advocate Terry Baker. The Tribunal was satisfied that with the assistance of his wife the applicant would not be disadvantaged by the absence of an interpreter and the applicant acknowledged this to be the case.

3. The documents lodged pursuant to Section 37 of the Administrative Appeals Act 1975 were taken into evidence. A written report from Dr Ashraf Saddik, the applicant's general practitioner, was available (Exhibit A1). During the hearing a request was made to Dr Saddik to give telephone evidence which he declined. He agreed however to respond promptly to a facsimile message setting out the questions for which the Tribunal would wish him to respond. This was done and the facsimile response taken into evidence (Exhibit A2). Mrs Jorquera did not give sworn evidence but did comment during the proceedings as well as interpreting her husband's evidence. The respondent called Mr Darren Bellingham, a departmental officer at the Moreland Centrelink office, to give evidence about job availability.

Legislation

4. The respondent conceded that the applicant met the requirements of subsection 94 (1) of the Social Security Act 1991 ("the Act") which sets out the qualifications for the DSP with the exception of (c) which reads as follows:

"(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

(iii) repealed."

5. As the issue to be decided relates to the meaning of continuing inability to work the following subsections need to be considered:

"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 in 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 or on-

the-job training; or

(b) if subsection (4) does not apply to the person -- the availability to

the person of work in the person's locally accessible labour

market."

6. The Tribunal looked also at the definition of "work" found in subsection 94(5) which is:

"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.

Facts

7. The respondent conceded that the applicant has a left shoulder condition which gives him pain and loss of function and that he has regular headaches and that the combined level of impairment was at least 20 points. Thus it was agreed that the applicant met the requirements of subsections 94(1)(a) and 94(1)(b).

8. The applicant could read both English and Spanish satisfactorily but spoke little English.

Issue

9. The issue before the Tribunal is whether the applicant, because of his impairment, has a "continuing inability to work" as defined in the legislation set out above.

Evidence

10. The applicant stated he had continuing pain in both arms, the right was worse, the shoulders and the neck. He was under medication all the time, panedine forte, serapax. If he goes out he has to rest upon return home. He does sometimes water the garden with a hose but has to change arms and cannot bear to do this for more than 5 minutes.

11. He agreed with Mr Baker, for the respondent, that he attended Dr Saddik once a month to obtain prescriptions and the necessary certificates.

12. Dr Saddik had provided a Treating Doctor's Report (TDR), dated 28 October 1999 and a further report, undated but possibly attached, which was received by Centrelink on 15 November 1999.

13. This latter report confirmed that the applicant suffered pain in arms, shoulders and neck, that he was restricted therefore in lifting any heavy objects or making repetitive upper limb movements. It also indicated a major depressive illness and low self-esteem. Dr Saddik attributed the depression to the applicant's low threshold of pain tolerability. He confirmed that the applicant had more than 20 impairment points, his opinion was 40 points. He also reported that the applicant had tried various remedies and treatments such as stretching programmes, physiotherapy and rehabilitation programmes.

14. In the TDR Dr Saddik responded to question 8 "When is the patient likely to be able to return to full-time work -- not just their last job ? [for at least 30 hours per week] by ticking the box more than 2 years.

15. While in his facsimile response to the specific questions from the Tribunal Dr Saddik did not directly respond he stated:

"I think it would be extremely difficult to get him a job however, if appropriate rehabilitation resumed, he could have a light duty volunteer job, which even so, I still think it is a great effort for Jorge."

16. Mrs Jorquera stated that her husband wanted to return to normal work but it was beyond him, he gets very frustrated and sometimes violent.

17. Mr Darren Bellingham stated he was the disability officer in the Moreland office of Centrelink and dealt with DSP applicants and, particularly, with the possibilities of return to work. He stated he was very familiar with job prospects that were opening up which may prove suitable for these people.

18. Mr Bellingham stated, from his knowledge and experience, there would be a variety of openings for the applicant with training and some rehabilitation. He said that there would soon be conductors returning to Melbourne trams and, as many northern suburbs residents were Spanish-speaking, this could be seriously considered for Mr Jorquera. He was confident that the applicant could be back in suitable employment within 2 years, with training.

Submissions

19. Mr Jorquera submitted that he could not, no matter how hard he tried, go back to full-time work, not inside 2 years, probably never. He would like to be able to do so.

20. On behalf of the respondent, Mr Baker submitted that on the evidence of an expert in disability employment, Mr Bellingham, there were a number of types of work for which the applicant could be re-trained. Even though Dr Saddik had said there was no expectation that Mr Jorquera could return to work within 2 years he had not addressed the issue of re-training which Mr Bellingham had indicated as necessary.

21. He submitted that the legislation required that the applicant had to have a "continuing inability to work" for more than 2 years and the respondent was confident, on the evidence of Mr Bellingham, that with training and rehabilitation Mr Jorquera could be back in full-time employment within 2 years.

Consideration of the Issues

22. The threshold issue is whether the applicant although currently seriously disabled has a "continuing inability to work". The legislative requirements are such that he should not be granted DSP, as he has sought, if he has the capacity to work at least 30 hours per week within 2 years, after re-training and rehabilitation considered necessary. This work potential does not have to be in his locally accessible labour market, it can be anywhere within Australia.

23. The evidence presented does not give a clear and precise response to the issue but the Tribunal is confronted by two conflicting opinions, from Mr Bellingham and from Dr Saddik. The former does not have particular personal knowledge of the applicant while the latter is his treating general practitioner whom he visits monthly.

24. It would have been very useful if the Tribunal had been told what re-training Mr Bellingham had in mind and then it had the benefit of Dr Saddik's opinion on whether the applicant could have undergone this type of training. Of course it would be hard for Mr Bellingham to generalise as different jobs would require different training.

25. For any of the jobs suggested by Mr Bellingham but if, say, the tram conductor's job talked about did become available and Mr Jorquera could be trained to do it would the physical demands of the job over more than 30 hours per week be too much for the applicant? Now Mr Bellingham does not have the expertise to answer that question, the Tribunal would have to look to Dr Saddik for a response. He only envisages Mr Jorquera in a "light duty volunteer job" which is far from a full-time job and describes even this a "great effort for Jorge". He has said in the TDR he does not see the applicant back in any kind of full-time work in 2 years.

26. The Tribunal is faced with conflicting views of the applicant's job prospects from experts with very different criteria on which they base their opinions.

27. The Tribunal would have preferred that Dr Saddik was present at the hearing and available for cross-examination. He did not even answer directly the questions put to him by facsimile. However his medical opinion expressed in the TDR must be weighed against the evidence of Mr Bellingham.

28. Mr Bellingham's evidence was confidently presented but lacked sufficient detail on re-training and rehabilitation. As he was not presented as, nor did he claim to be, an expert in these disciplines perhaps he was not able to say more than he did. It would have assisted the Tribunal to have had other expert witnesses.

29. In all the circumstances the Tribunal is not convinced that re-training and rehabilitation will transform the applicant so that he can be in full-time work within 2 years. Accordingly the Tribunal finds that the applicant has a continuing inability to work to satisfy the requirement of subsection 94(1)(c)(i) of the Act.

Decision

30. The Tribunal will set aside the decision under review and direct the respondent to grant the applicant a Disability Support Pension.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.T.C. Brassil, AM, Member

Signed: Judith Holt, Associate

Date of Hearing 10 December 1999

Date of Decision 31 January 2000

Applicant Self-represented

Respondent Mr T. Baker, Administrative Law Team,

Centrelink