Vrdoljak and Department of Family and Community Services [2000] AATA 629 (1 August 2000)

Last Updated: 12 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 629

ADMINISTRATIVE APPEALS TRIBUNAL )

) N1999/1050

GENERAL ADMINISTRATIVE DIVISION )

Re ILIJA VRDOLJAK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date 1 August 2000

Place Sydney

Decision The decision under review is affirmed

[Sgd] Ms S M Bullock

Member

CATCHWORDS

Social Security - severely disabled - portability of Disability Support Pension

Social Security Act 1991 ss23 (4B), 1213A

Re Blundell and Secretary, Department of Social Security (1998) 3(5) SSR 159

Re Secretary, Department of Social Security and Tsakrios (1994) 79 SSR 1154

Re Bourboulas and Secretary, Department of Social Security (1997) (AAT 12045, 23 July 1997)

REASONS FOR DECISION

MS S M BULLOCK

1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Ilija Vrdoljak, the Applicant, of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 10 June 1999, which decided that Mr Vrdoljak's medical impairment did not render him unable to carry out at least eight hours work per week and he was not severely disabled as required by the Act to enable him to be successful in his application to have his Disability Support Pension paid for greater than twelve months while overseas (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services made and advised to Mr Vrdoljak on 10 May 1999 (T38). The ARO's decision in turn affirmed a decision of a delegate of the Secretary, Department of Family and Community Services ("the Department") made on 9 April 1999, which decided that Mr Vrdoljak was not severely disabled as defined in the Social Security Act 1991 and accordingly his Disability Support Pension was not payable for more than 12 months once Mr Vrdoljak left Australia (T37).

2. A hearing was held before the Tribunal in Sydney. Mr Vrdoljak was self- represented and provided oral evidence. He was assisted by an interpreter in the Croatian language. The Respondent, the Department, was represented by Ms A Alex, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents" T1 -T40) and the following exhibits;

Exhibit Number Description Date

A1 Letter from Dr V Jakovac, General Practitioner 20 December 1999

A2 Medical Certificate from Dr K H Tong, General Practitioner 16 March 2000

R1 Respondent's Amended Statement of Facts and Contentions 30 March 2000

issues

3. The issues to be determined in this matter are:

1. whether or not Mr Vrdoljak is severely disabled as defined in section 23(4B) of the Social Security Act 1991 ("the Act"); and, if so

2. does Mr Vrdoljak have impairments which make him totally unable to work for at least two years or benefit from a program of assistance or a rehabilitation program?

legislation

4. A determination of this matter requires considerations of the provisions of the Act.

5. Mr Vrdoljak wishes to be paid his Disability Support Pension overseas for a period greater than 12 months. In order to be successful in that application, Mr Vrdoljak must satisfy section 1213A of the Act which sets out the restrictions of payment for Disability Support Pension if a person leaves Australia. As relevant section 1213A states:

"1213A(2) If:

(a) a person is receiving a disability support pension granted on or after 12 November 1991; and

(b) the person leaves Australia on or after that day; and

(c) the Secretary decides that the person is not severely disabled when leaving; and

(d) the person continues to be absent from Australia for a period of 12 months;

the person ceases to be qualified for disability support pension on the day after the 12 month period ends."

6. The term "severely disabled" is defined in section 23(4B) of the Act and provides:

"23(4B) For the purposes of this Act, a person is severely disabled if:

(a) a physical impairment, a psychiatric impairment, an intellectual impairment, or 2 or all of such impairments, of the person make the person, without taking into account any other factors, totally unable:

(i) to work for at least the next 2 years; and

(ii) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(b) the person is permanently blind.

..."

background

7. The following information is provided by way of background and the facts contained within are not in dispute.

* Mr Vrdoljak was born on 29 March 1942 in Croatia. He married on 23 September 1967 and has two married sons, who no longer live at home, and two children aged 20 years and 16 years who continue to live at home.

* Mr Vrdoljak came to Australia on 22 October 1970 (T6).

* Mr Vrdoljak was employed as a roof tiler until about 1982 when he injured his back. Thereafter he worked as a light carpenter until approximately 1984.

* Mr Vrdoljak is in receipt of a Disability Support Pension and the continuance of this pension is not in contention.

* On 31 December 1999, Mr Vrdoljak made an application to continue payment for his Disability Support Pension during an overseas absence. Mr Vrdoljak advised that his date of departure would be "17/4/99 - 29/7/99 - June 99" (T33, p117) and that his absence was likely to be permanent. On the same form Mr Vrdoljak also wrote that his planned date of return to Australia was unknown. Mr Vrdoljak had made a number of previous applications to have his Disability Support Pension to be paid overseas for periods greater than 12 months.

* As a consequence of making an application for continuation of his Disability Support Pension overseas, Mr Vrdoljak was examined by Dr P Thomas, Medical Officer with Health Services Australia, who on 6 April 1999 determined that Mr Vrdoljak had a combined impairment rating of 20 per cent, made up of 10 per cent from Table 3 of the Impairment Tables contained in Schedule 1B to the Act for the condition of adhesive capsulitis right shoulder; five per cent from Table 21.4 for asthma; five per cent from Table 5.1 for minor cervical spine degenerative disease; nil per cent from Table 5.2 for degenerative arthritis of the lumbar spine; and nil per cent from Table 11.1 for gastritis (T35, p135).

* Dr Thomas opined that Mr Vrdoljak could undertake light skilled work, light semiskilled work such as the duties of a clerk, cashier, parking attendant or light/lesser skilled work such as the duties of a light process worker or photographic developer. Dr Thomas further reported:

"He has radiological evidence of minor degenerative disease in his neck and back, present and unchanged for many years, a chronic adhesive capsulitis of his right shoulder, obstructive airways disease which has features of asthma, and a previous diagnosis of gastritis...

Today Mr Vrdoljak walked well, sat well, transferred well, + undressed well. He was able to bend fully at the waist to pick up a piece of paper off the floor, and had an almost full range of movement of his shoulder (R). He drives without difficulty, + can mow the lawn......his impairment rating is 20. I will not comment on his ability to work 30 hours a week or more, but he remains quite capable of light work for at least 8 hours a week. He could work as a courier, or in sales/retail for two hours a day for five days." (T35, p141)

* On 9 April 1999, Centrelink decided that Mr Vrdlojak was not severely disabled within the definition of the Act and thus his Disability Support Pension would only be payable for a period of 12 months once he left Australia (T37, p145).

* Mr Vrdlojak sought a review of the Delegate's decision and on 10 May 1999, an ARO affirmed the decision that Mr Vrdoljak could not be paid Disability Support Pension for more than 12 months after the commencement of his absence from Australia (T38).

* On 12 May 1999, Mr Vrdoljak appealed to the SSAT, and on 10 June 1999 the SSAT affirmed the ARO's decision.

* On 10 July 1999, Mr Vrdoljak appealed to the Tribunal noting:

"I have applied before and I have attended the last tribunal, although I feel I have been mistreated, and I have come to the decision to apply again to seek justice of my health according to what I am able to receive that will help me." (T1, p2)

evidence of mr vrdoljak

8. Mr Vrdoljak listed his medical conditions for the Tribunal as neck and lower back pain, asthma, allergic reaction and gastric ulcer problems.

9. In relation to his neck impairment, Mr Vrdoljak stated that he has "two broken vertebrae" in the cervical area. He described occasions of not being able to lift his head and also of being unable to turn his head to look in a particular direction, having instead to turn his whole body because of the pain. Mr Vrdoljak explained that all of his right shoulder and arm is affected and he has great difficulty holding or lifting objects. Often Mr Vrdoljak experiences pins and needles or numbness. The pain was described by Mr Vrdoljak as if he has a knife stuck in his head. The pain also extends down his shoulder and arm. Mr Vrdoljak used to receive medication and physiotherapy as treatment for this condition but this ceased some time ago. It had been suggested to Mr Vrdoljak by an orthopaedic surgeon, Dr Siliki, that he have surgery to try and correct his problem, but Mr Vrdoljak does not want to avail himself of this form of treatment. Currently Mr Vrdoljak takes Panadol for his pain.

10. In relation to his back condition, Mr Vrdoljak informed the Tribunal that he has three damaged discs in his lower back, which also cause him great pain. He must be careful when he sits and cannot sit for prolonged periods of five minutes or more because he becomes very stiff. Mr Vrdoljak is unable to make sudden movements and must make subtle changes of position frequently to avoid pain and stiffness. He is able to walk, but is not able to stand on the same spot for any length of time. Mr Vrdoljak stated that he continues to drive the car but only short distances and for no longer than half an hour. Mr Vrdoljak explained that he drives his children to school or for errands and also to drive his wife to undertake the shopping.

11. As with his neck, Mr Vrdoljak's treatment for his back condition is analgesics in the form of Panadol. In the last month, Mr Vrdoljak recalled that he took Panadol on five or six occasions. Previously, Mr Vrdoljak would take Panadol every day, but this level of medication has reduced as there has been a slight improvement in his conditions, Mr Vrdoljak told the Tribunal. The problems he has with his back and neck are exacerbated by changes in climate and sudden movement. Mr Vrdoljak stated that his neck problem is much worse than his back problem and in fact that he now seems more able to control his back problem.

12. In relation to Mr Vrdoljak's asthma, this condition is treated by ventolin puffers, administered two puffs four times a day. He also has a turbahaler, which he uses twice a day. Mr Vrdoljak informed the Tribunal that he has not been hospitalised for his asthma. Mr Vrdoljak's asthma is worse in summer.

13. Allergies have also been a problem for Mr Vrdoljak and he has been treated by a specialist in Liverpool. Dr K H Tong, General Pracititioner, reported on 16 March 2000 that he had treated Mr Vrdoljak between 1990 and 1998 with his problems at that time, mainly relating to nasal allergy and occasionally asthma. Dr Tong treated Mr Vrdoljak with a regime of "desensitisation injection and inhalers" (Exhibit A2).

14. On 20 December 1999, Dr V Jakovac, Mr Vrdoljak's treating General Practitioner, reported that Mr Vrdoljak has severe allergies which affect his breathing and cause headaches. Dr Jakovac reported that:

"His air gases, oxygent (sic) and carbon dioxide has been greatly affected and with that his general health. His condition over all has been affecting him being permanently and totally unfit for work for any active employment. Quality of life has been greatly deteriorating." (Exhibit A1)

15. Mr Vrdoljak finds that his breathing difficulties are severely affected if he is in traffic and not only does it make it difficult for him to breathe, but he will often become nauseated by the exhaust fumes of cars and buses. Thus travelling any distance is not only a problem for him in terms of his back and neck conditions, but also because of his asthma which he thought developed about five to six years ago.

16. In relation to his gastritis, Mr Vrdoljak stated that he experiences pain in his stomach and that he is being treated for this condition by Dr Jakovac. Dr Jakovac also reported on 20 December 1999 that Mr Vrdoljak has chronic gastritis "causing him recurrent pain, discomfort, poor appetite and nausea" (Exhibit A1). Mr Vrdoljak also informed the Tribunal that he does not take medication for this condition and controls it by diet. In recent times, Mr Vrdoljak reported that this condition has improved.

17. The Tribunal questioned Mr Vrdoljak about his daily activities. He stated that gardening is his hobby and that he has a vegetable garden. Mrs Vrdoljak is the main person caring for the garden, but Mr Vrdoljak does what he can. Mr Vrdoljak estimated that he would garden for approximately half an hour each week.

18. At home Mr Vrdoljak tries to help out where he can. Recently he was helped by his family and friends to paint his house but he himself was only able independently to paint one room.

19. Mr Vrdoljak was questioned about evidence to the SSAT that he vacuumed the house and that it took over an hour. Firstly, Mr Vrdoljak indicated that it would not take one hour to vacuum the home and that if he did any vacuuming, it was minor and he could only do this using his left hand. Mr Vrdoljak reiterated to the Tribunal that he does what he can around the house but he said the main work is done by either his wife or family.

20. Mr Vrdoljak does sit at his computer from time to time and is able to type short letters. In doing so he must change position frequently and cannot sit at the computer for long. Mr Vrdoljak also denied evidence reported in the SSAT decision that he could lift his young grandaughter. While not denying that he has grandchildren, Mr Vrdoljak said he is simply not able to lift his grandaughter.

21. Mr Vrdoljak told the Tribunal that he had made a tool box for his son using a jig saw by operating it with his left hand. Mr Vrdoljak again denied telling the SSAT that he had the ability to work 10 hours per week, stating that he might have said that perhaps he could work 10 hours per week, but that his health was a priority and he could only work if his health were better. The SSAT and Dr Thomas misinterpreted his information to them, Mr Vrdoljak stated.

22. Referring to Dr Thomas' statement in his assessment, which indicated that Mr Vrdoljak could bend at his waist to pick up a piece of paper from the floor, Mr Vrdoljak confirmed that he did do this but perhaps he had been squatting. Mr Vrdoljak denied that he could bend with straight knees.

23. Mr Vrdoljak told the Tribunal that he likes to keep active and be independent. Despite this attitude, he requires the assistance of his wife to put on his socks, shoes and to tie his shoe laces and further, to assist with buttons. When asked whether Mr Vrdoljak lead an active life, he stated that he likes to have an interesting life and is never bored. Mr Vrdoljak will visit friends or they will visit him. He also has an interest in the Croatian community and is about to become part of a group of Croatians being formed to help elderly Croatian people in nursing homes. Mr Vrdoljak watches television from time to time, reads and listens to ethnic radio. Mr Vrdoljak will often accompany his wife to do the shopping though he is unable to lift heavy shopping parcels. Mr Vrdoljak stated that Dr Thomas had misinterpreted their discussion about shopping and denied that he had told Dr Thomas that he did all the shopping.

24. Dr Thomas had reported that Mr Vrdoljak had told him that he would be able to do some work. Mr Vrdoljak stated that what he had said to Dr Thomas was that when he was in Croatia he felt much better, his health improved and he may have been able to work if his health improved further. Mr Vrdoljak vehemently denied that he had ever told Dr Thomas that he was capable of working. The distinction between what Mr Vrdoljak was actually capable of doing as compared to what he would like to do if his health was better and allowed him to undertake more activity were two different things. Mr Vrdoljak told the Tribunal that his main priority was his health, at this time.

25. Mr Vrdoljak was asked about Dr Thomas' opinion that he could undertake light work, either skilled or semiskilled. Mr Vrdoljak stated that he was not happy with Dr Thomas' report as it did not reflect his true medical situation. Dr Thomas had only spent five minutes with him and Mr Vrdoljak suggested that this was hardly enough time to fully investigate his conditions and understand his various health problems and their impact on his life. Mr Vrdoljak told the Tribunal that in terms of his working in a photographic studio, he could not work in an enclosed stuffy room and that he requires lots of air, because of his health conditions and because he does not like enclosed spaces, he is claustrophobic. Mr Vrdoljak stated that he would have great difficulty in getting to and from work because of his inability to sit in either a car or public transport, because of his mobility problems and also because of the fumes associated with car or bus travel, which impacted upon his allergies and his asthma. Asked the question as to whether he wanted to work, Mr Vrdoljak replied, "Do they want me to work until I die?"

26. Mr Vrdoljak explained to the Tribunal that he wants to go to Croatia to live for longer than 12 months because he likes the air there and his health improves. When he was recently away in Croatia he found that his health improved dramatically, he put on approximately five kilograms of weight and people were remarking to him how well he looked. His plan is that he would sell his Australian home and would buy a smaller house in Australia, where his wife and two dependent children would live. With the remainder of the money from the sale of his current home, he would then purchase land in Croatia and build his own house where he would live. He is now unable to live in his actual village but would live near Zagreb, noting that his four brothers and three sisters live within a 150 kilometre radius of Zagreb. Mr Vrdoljak told the Tribunal that if he were not successful in his application to have his Disability Support Pension continued beyond 12 months while he was overseas, he would go to Croatia anyway.

27. Mr Vrdoljak informed informed the Tribunal that previously Dr Tong had suggested to him that he live in the Cooma area, as this had similar climate to the part of Croatia from which Mr Vrdoljak originates. However Mr Vrdoljak declined to take up this recommendation and in fact discontinued consulting Dr Tong.

submissions

28. Mr Vrdoljak submitted that he is completely disabled and he feels that if he does not change his life, he will become sicker and sicker and will die.

29. Mr Vrdoljak told the Tribunal that he understands the law and does not want to break the law but if the Tribunal does not assist him, he will still go to Croatia, without his Disability Support Pension, if necessary. Mr Vrdoljak contended that he has given his country of Australia his "broken back" and thirty years of his hard working life.

30. Mr Vrdoljak submitted that he is severely disabled as defined in the Act and is unable to work for at least the next two years or to benefit within that period from participation in a program of assistance or rehabilitation. Mr Vrdoljak submitted that the Tribunal should take notice of the report and opinions expressed by his treating doctor, Dr Jakovac, because she knows his medical condition extremely well and is able to provide objective evidence as to his incapacity. Other doctors, such as Dr Thomas, spent such a short time with him and did not properly investigate and assess all of his medical conditions and their impact on his lifestyle or his ability to work.

31. In conclusion, Mr Vrdoljak contended that he is severely disabled for the purposes of the Act and should be allowed to continue to receive his Disability Support Pension beyond 12 months while he cares for his health in Croatia.

32. Ms Alex, for the Department, submitted that there is no dispute in relation to Mr Vrdoljak's overall qualification for Disability Support Pension. The issue is whether or not for the purposes of section 23(4B) of the Act, Mr Vrdoljak is severely disabled. Ms Alex submitted that the term "severely disabled" covers such situations as terminal illness, severe degenerative disease and conditions causing neurological difficulties such as neurological injuries and head injuries. The critical issue is the severity of Mr Vrdoljak's conditions at the time of the decision not to allow him to take his Disability Support Pension overseas for a period greater than 12 months.

33. Ms Alex submitted that Dr Thomas, Medical Officer from Health Services Australia, indicated in the whole person assessment:

"...he remains quite capable of light work for at least 8 hours a week. He could work as a courier/sales/retail for 2 hours a day for 5 days" (T35, p141)

Further, the evidence provided by Mr Vrdoljak to the SSAT indicated that he was able to undertake such activities as lifting up his grandaughter, making a tool box, undertaking some lawn mowing, working on the computer and undertaking limited household tasks such as painting. The SSAT concluded that Mr Vrdoljak could work 10 hours per week.

34. Ms Alex acknowledged that Mr Vrdoljak was not in good health, however the test for being severely disabled is a "tough test", which the Respondent did not consider Mr Vrdoljak meets. Ms Alex referred the Tribunal to Re Bourboulas and Secretary, Department of Social Security (1997) (AAT 12045, 23 July 1997), in which the then Commonwealth Medical Officer allocated Mrs Bourboulas a combined impairment rating of 36 per cent followed by a second Commonwealth Officer's allocation of impairment rating of 40 per cent. Both Medical Officers, however, considered this impairment did not prevent Mrs Bourboulas from participating in educational or vocational training despite her having such severe disabilities which included a chronic neck condition, episodic migraine, hearing impairment and vertigo with tinnitus. That Tribunal referred to the Macquarie Dictionary definition of "severe" noting that severe referred to things such as "harsh; harshly extreme...severe illness;...a severe test;...severe conformity to standards". In another case, Re Blundell and Secretary, Department of Social Security (1998) 3(5) SSR 59, that Tribunal noted that Mr Blundell was not so severely disabled under section 23 (4B) of the Act and accepted medical evidence that Mr Blundell could work at light duties for up to 8 hours per week. Further, the Tribunal was referred to Re Secretary, Department of Social Security and Tsakrios (1994) 79 SSR 1154 in which that Tribunal held that Mrs Tsakrios was not severely disabled because at the date of her departure from Australia, her physical impairment was, although disabling enough to qualify her for a Disability Support Pension, not so severe that she was totally incapable of undertaking any part-time work. In that case, a combined impairment rating of 35 per cent was made by the Commonwealth Medical Officer and although Mrs Tsakries would not be fit to perform work for more than 30 hours per week she could at least undertake a part time light semi-skilled or light unskilled work. Further, the Tribunal also considered that Mrs Tsakrios could undertake educational or vocational training within the next two years.

35. Ms Alex contended that pursuant to subsection 1213A(2) of the Act, Mr Vrdoljak could not be paid Disability Support Pension for any period beyond 12 months absence from Australia because he is not severely disabled as is required in subsection 1213A(2)(c) of the Act. Accordingly, Ms Alex contended that Mr Vrdoljak's Disability Support Pension is correctly limited to 12 months after the commencement of his absence from Australia because he could not be considered to be severely "disabled" within the context of the legislation based on all of the medical and oral evidence provided to the Tribunal.

36. In conclusion, Ms Alex contended that the decision of the SSAT should be affirmed as the correct and preferable decision.

findings

37. The Tribunal has made a decision in this matter taking into account all the oral and documentary evidence, the submissions and by applying the legislation and case law.

38. The Tribunal found Mr Vrdoljak cooperative and frank in the provision of his evidence.

39. At the outset, the Tribunal notes that there is no dispute that Mr Vrdoljak is qualified for a Disability Support Pension and, on the Tribunal's assessment of Mr Vrdoljak's various medical conditions, considers that the appropriate combined impairment rating for his conditions is 20 points. The Tribunal does note however, Mr Vrdoljak's evidence that in relation to his back condition he is more able to control this and that his gastritis condition has improved slightly. The Tribunal accepts the severity of the neck incapacity Mr Vrdoljak experiences and associated shoulder condition in addition to his asthma and allergic condition from time to time. The Tribunal also notes Dr Jakovac's most recent report of 20 December 1999 in which Dr Jakovac described the suffering experienced by Mr Vrdoljak in relation to his cervical and disc degeneration and protrusion problems, his chronic gastritis and severe allergy and breathing difficulties. The Tribunal also noted Dr Jakovac's much earlier Treating Doctor's Report of 24 November 1997 (T10). The Tribunal concluded that in relation to Dr Jakovac's 1997 report the impairment ratings detailed in that report were not using the Impairment Tables contained in Schedule 1B of the Act and further that the reported symptoms and consequences of Mr Vrdoljak's disabilities at that time seem more severe than that reported by him now.

40. In relation to Dr Jakovac's most recent 1999 report, the Tribunal notes that Mr Vrdoljak's evidence indicates that in relation to the gastritis and his back conditions, that these have improved slightly and that he is more control of them than is apparent by Dr Jakovac's opinion. Further, the evidence provided by Mr Vrdoljak in his abilities to undertake some light work around the house including painting, occasionally mowing the lawn, driving the car, assisting his son to make a tool box and undertaking some shopping are also not consistent with Dr Jakovac's opinion.

41. The Tribunal considers that Mr Vrdoljak is disabled and has disabilities which do cause him pain and discomfort and a need to limit various activities. Mr Vrdoljak is after all in receipt of a Disability Support Pension which recognises that he does have disabilities and incapacities to the level sufficiently severe as to qualify him for that pension. The issue for the Tribunal however is whether or not Mr Vrdoljak is so severely disabled as to allow him to come within the provisions of section 23(4B) of the Act so that he could satisfy subsection 1213 A(2) of the Act to allow him to receive a Disability Support Pension overseas beyond a 12 month period.

42. The Tribunal must consider all of the available evidence. It is the Tribunal's finding that Mr Vrdoljak is able to undertake a number of activities including assisting in the garden, driving the car, painting the house with assistance, and assisting with shopping, making a tool box for his son and undertaking community activities. While the Tribunal recognises that Mr Vrdoljak is restricted in his activities and lifestyle, the level of activity which he undertakes even though limited, still, in the Tribunal's view, is not sufficient to allow it to determine that Mr Vrdoljak is severely disabled. To be severely disabled in the legislative sense, Mr Vrdoljak's incapacities would require that he be extremely restricted in what he cannot do. To be severely disabled, the Tribunal would expect that a person would be extremely limited in the activities he/she could undertake, requiring a great deal of assistance from others in a practical and domestic sense and medically. Mr Vrdoljak is still, on his own evidence, able to keep active and ensure that his life is interesting even though he has recognised disabilities. The evidence provided by Mr Vrdoljak indicates that he is undertaking light duties in and around his house of a semi-skilled nature. He is still able to visit or be visited by friends, to contemplate undertaking community assistance to members of the Croatian community and to assist his family in various undertakings. Such activities are not the hallmarks of severe disability, the Tribunal finds. The Tribunal considers that the evidence provided by Mr Vrdoljak is more consistent with the medical findings of Dr Thomas and the assessment of the SSAT. Dr Jakovac's findings, from the Tribunal's assessment, are seemingly inconsistent with the evidence provided by Mr Vrdoljak.

43. Accordingly, in all the circumstances and for the reasons set out above, the Tribunal finds that Mr Vrdoljak is not severely disabled as is required under section 23 4(B) of the Act in that he would be able to work in a light skilled or semi-skilled capacity for the next two years and also could benefit from participation from a program of assistance or a rehabilitation program. Having so found, the Tribunal further determines that pursuant to subsection 1213 A(2) of the Act, Mr Vrdoljak is not qualified to have a Disability Support Pension paid to him overseas on the day after a 12 month period of absence. Having so determined, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of MS S M BULLOCK

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

Associate

Date of Hearing 4 April 2000

Date of Decision 1 August 2000

Representative for the Applicant Self-represented

Representative for the Respondent Ms Adele Alex,

Departmental Advocate