Yelda and Secretary, Department of Family and Community Services [2002] AATA 43 (11 January 2002)

Last Updated: 25 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 43

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/974

GENERAL ADMINISTRATIVE DIVISION )

Re ABDO YELDA

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Professor T Sourdin, Member

Date 11 January 2002

Place Sydney

Decision The decision under review is set aside and pursuant to subsection 43 1(c) of the Administrative Appeals Tribunal Act 1975 the Tribunal substitutes its decision that Mr Yelda is qualified for a Disability Support Pension pursuant to section 94 of the Social Security Act 1991.

T Sourdin

Member

CATCHWORDS

SOCIAL SECURITY - claim for disability support pension - whether impairment is 20 points or more vide Schedule 1B - ability to undertake work - ability to undertake educational or vocational training

Social Security Act 1991 - ss 94(1), (2), (3), 100(3)

Social Security Legislation Amendment Act No1 (1995)

Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996)

REASONS FOR DECISION

Professor T Sourdin, Member

1. This is an application for review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 3 May 2001, On 13 December 2000, a delegate of the Secretary, Department of Family and Community Services ("the Respondent") decided that Abdo Yelda ("the Applicant") was not eligible for a disability support pension. That decision was affirmed by an Authorised Review Officer of the Respondent on 18 December 2000, then further affirmed by the SSAT on 3 May 2001. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 9 July 2001.

2. A hearing before the Tribunal took place on 11 January 2002. The Applicant was represented by Mr Colborne. An Arabic interpreter assisted the Applicant. Mr Lozynsky, advocate, appeared for the Respondent.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). The Tribunal also took into evidence the following:

Report by Dr Lewis Enright dated 12 November 2001 Exhibit A1

Report by Dr Lewis Enright dated 26 November 2001 Exhibit A2

Report of Dr Ibrahim dated 9 January 2002 Exhibit A3

Applicants Statement of Facts and Contentions dated 27 November 2001 Exhibit A4

Respondents Statement of Facts and Contentions dated 2 January 2002 Exhibit R1

Respondents Statement of Issues dated 1 August 2001 Exhibit R2

Report of Dr Keen dated 29 November 2001 Exhibit R3

ISSUES BEFORE THE TRIBUNAL AND LEGISLATION

4. The issue before the Tribunal is whether the Applicant, Mr Abdo Yelda, has an impairment that is assessed at 20 points or more under the Impairment Tables in schedule 1B of the Social Security Act 1991 ("the Act"), and if so, whether he has a continuing inability to work because of that impairment pursuant to the conditions in subsections 94(2), (3), (5) and (6) of the Act.

5. Section 94 of the Act states, relevantly:

"94(1) A person is qualified for disability support pension if:

the person has a physical, intellectual or psychiatric impairment; and

the person's impairment is of 20 points or more under the Impairment tables; and

one of the following applies;

the person has a continuing inability to work;

...

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 two years; and

either:

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

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 impairment, the Secretary is not to have regard to:

the availability to the person of educational or vocational training or on-the-job training; or

if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market.

94(4) educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.

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

that exists in Australia, even if not within the person's locally accessible labour market.

6. Sub section 100(3) of the Act is also relevant, and states:

"If:

a person lodges a claim for a disability support pension; and

the person is not, on the day on which the claim was lodged, qualified for a disability support pension; and

the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

7. Following Re Pirie and Repatriation Commission (AAT 11505, 20 December 1996), the period of assessment in this matter, pursuant to subsection 100(3) of the Act, is from 16 November 2000, when the claim was lodged, to 16 February 2001.

8. The Tribunal has considered the medical evidence presented to it as well as the evidence presented by the applicant. The Tribunal takes account of those conditions as described, in the context of any medical evidence and as relevant.

9. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act. The introduction to the Tables states, relevantly:

1. "These Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. ..."

2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...

These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ... A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

The condition must be considered to be permanent. ...

8. In general, pain or fatigue should be assessed in terms of the underlying medical condition, which causes it. ..."

APPLICANT'S EVIDENCE AND FACTS

Background

10. The facts contained below are by way of background information and are not in dispute.

Mr Yelda was born in Iraq on 1 July 1946.

Mr Yelda immigrated to Australia in January 1982. He is married and lives with his wife and two of his six children (the other children are independent).

Mr Yelda has limited formal education. His education ceased when he was aged 16 in Iraq.

He has a poor grasp of English in its written form.

Since his arrival in Australia, Mr Yelda has spent nearly all of his working life performing labour and cashier work in petrol stations and in the fruit markets.

In 1986 suffered a back injury in the course of his employment duties.

In 1999, Mr Yelda ceased work due to a number of factors that appear to include his worsening medical condition.

Mr Yelda has not worked since that time and continues to experience pain in his neck, back and left knee.

On 14 November 2000, Mr Yelda lodged an application for a Disability Support Pension with Centrelink (T7). In that claim he notes the following medical conditions: " lower back pain ... Neck pain...L sided chest pain...L Knee pain". Mr Yelda noted that from 1997, these disabilities started to make it difficult for him to work.

Mr Yelda's treating Doctor at the time of his pension claim was Dr Ibrahim. Dr Ibrahim has been treating Mr Yelda since February 1992. For the purposes of Mr Yelda's claim, Dr Ibrahim completed a Treating Doctor's report on 14 November 2000 (T7).

Dr Ibrahim diagnosed the Applicant as suffering from the following conditions: Lumbar back pain, cervical pain and discomfort, Chest pain and L Knee pain (osteoarthritis). The doctor further noted that these were all long term conditions and that the Applicant would not be able to return to any kind of work within the next two years.

On 11 December 2000, Mr Yelda was assessed by Health Services Australia. Dr G Thompson completed a Medical Assessment Report at the time of his assessment, which may be found at T9.

Dr Thompson reported that the Applicant's medical conditions include low back pain, neck pain and pain in his knee when walking; however, he assessed that the Applicant could work with minor discomfort although he would be unable to lift, carry or move objects. Dr Thompson gave Mr Yelda a rating of 15 points (pursuant to Table 5.2 of the Impairment Tables) for his back and neck conditions and nil points in relation to his knee and chest pain.

Dr Thompson concluded that Mr Yelda's medical conditions do not prevent him from undertaking vocational rehabilitation and training (with an emphasis on English language skills), and found that he would be fit "in six months" for thirty hours work per week performing "bench or process work" while seated. "

Evidence of Mr Yelda

11. Mr Yelda required the use of an interpreter throughout the hearing before the Tribunal. He indicated that he had difficulty reading or writing in English. He ceased formal education upon his completion of school in Iraq and has never undertaken any retraining or re-education since that time.

12. Mr Yelda informed the Tribunal that his main health problems are:

Back pain

Neck pain

Knee pain

Anxiety and poor concentration

13. Mr Yelda's oral evidence to the Tribunal is that he often has pain. He stated that he cannot stand or walk for longer than thirty minutes without taking a rest because of the pain in his lower back. He indicated that he was able to walk for limited distances on flat, even surfaces but that he had difficulty walking and took "a long time".

14. The Applicant described his daily occupation as remaining at home and reading the Holy Book, attending to light gardening and garage duties. He can drive short distances and sometimes takes his wife to the shops.

15. He indicated that he could not work, as no one would employ him. He was unable to work for a lengthy period, was frustrated because of his concentration difficulties and could not deal with customers. He also indicated that he could not lift or carry things.

MEDICAL

16. The T37 documents contain a few medical reports on the Applicant by various general practitioners and specialists over a period of some eight years. Dr Lewis Enright a consultant occupational Physician completed the most comprehensive examination of the Applicant. Dr Guirgis also examined the Applicant on 10 November 2000.

17. The more recent report of Dr Lewis Enright assesses the Applicants disability at between 25 to 45 points. This rating includes an amount of 10 points for the Applicants left knee condition (that was assessed at nil points by Dr Thompson) and also refers to the possible presence of Post Traumatic Stress Disorder (PTSD) that stems from the Applicants experiences in Iraq.

18. Dr Keen (who did not see the Applicant but commented upon reports) noted that the 15-point allowance made previously could be increased if PTSD was supported by medical evidence. He also noted that he considered it appropriate to allow a nil amount for Mr Yelda's knee condition. This view appears to be based in part upon the evidence SSAT given before. In relation to this evidence the Tribunal notes that there are inconsistencies in the decision.

19. Dr Ibrahim provided a Treating Doctor's Report relating to this claim for disability support pension. He reports that he saw the Applicant 6 times in the past 12 months.

Impairment Assessments

20. The decision of the SSAT assessed a 15-point impairment rating. Based on the lack of detail in the documentation as to the PTSD complaint and the knee complaint as well as the limited specialist treatment it was no doubt difficult for the SSAT to determine this matter.

SUBMISSIONS

21. The Applicants counsel indicated that there was evidence relating to the knee condition at the relevant time and that on the basis of this condition the Applicant would be entitled to a 25-point disability rating. The Applicants counsel referred to the original claim, the supporting evidence of Dr Ibrahim and Dr Lewis Enright.

22. The Respondent submitted that an impairment rating of 15 points was appropriate under the criteria incorporated in the various tables The Respondent further submitted that the Applicant had not supported his claim for his knee condition adequately at the relevant time (being the 13 weeks following lodgment of the claim) and that the Applicants PTSD claim could not be considered in this application.

23. The Respondent gave a breakdown of his assessments under the Table, leading to the total impairment rating of 15.

ANALYSIS OF EVIDENCE AND FINDINGS

24. The Tribunal agrees with the submission by the Respondent that the PTSD condition (if existing) cannot be considered. However the Tribunal considers that it is appropriate to consider the knee condition that was raised by the Applicant in his application and supported by his Treating Doctors report.

25. The evidence of Dr Ibrahim, the treating doctor, and Dr Lewis Enright is reasonably consistent. Both assess the applicant as having considerable difficulty with his left knee that could be rated at 10 points.

26. The evidence of the Applicant persuaded the Tribunal that the thrust of medical opinion provided by the applicant was correct. Having considered the medical evidence available to it and the oral evidence of Mr Yelda, the Tribunal finds that the Applicant meets the minimum requirement of twenty points pursuant to the Impairment Tables.

27. A finding in this matter having been made, it is necessary for the Tribunal to comment on the Applicant's inability to work as required under section 94(1)(c). In this regard The Tribunal has gained some guidance on this issue from Secretary, Department of Social Security v Pusnjak [1999] FCA 994.

28. The facts of Pusnjak are similar to those, which are evident in Mr Yelda's case. On 26 May 1998, the Administrative Appeals Tribunal heard Mr Pusnjak's application. The Tribunal noted that Mr Pusnjak had a poor grasp of English, was poorly educated, that he had no trade skills and that he had spent all his life as a labourer. That Tribunal set aside the original decision to cancel Mr Pusnjak's Disability Support Pension, stating:

"It has been suggested that Mr Pusnjak might be able to do light semi-skilled work. The Tribunal takes the view that it is necessary to take the qualities of the specific person into account when assessing the impact of the impairment on that person and not refer to some hypothetical person who may be able to cope with the same impairment. The same impairment would probably have little effect on the employability of a professional person. Pusnjak's impairments render him unemployable. No amount of training will help Mr Pusnjak" (Re Pusnjak and Secretary, Department of Social Security, AAT 12944, 26 May 1998).

The Department then instigated appeal proceedings in the Federal Court.

29. In considering the construction which should be given to section 94 of the Social Security Act 1991 and particularly the words 'continuing inability to work', Drummond J in Department of Social Security v Pusnjak (supra) held that a narrow approach is not warranted; indeed, that it results in absurdity and unreasonableness.

30. In endorsing the approach of the AAT, His Honour stated that:

"...the applicant has failed to demonstrate any error of law on the part of the Tribunal in taking into account Mr Pusnjak's actual work skills and experience and capacity to be retrained for any work that he could thereafter do..."

31. The Tribunal finds that on all the evidence, Mr Yelda is, because of all his claimed impairments, prevented from doing any work within the next two years. He therefore satisfies subsection 94(2)(a) of the Act. Mr Yelda suffers pain, loss of range of movement of the lower back and neck as well as his knee and is thereby unable to work.

32. Turning to subsection 94(2)(b)(i) of the Act, the Tribunal considers that Mr Yelda's impairments are of themselves sufficient to prevent him from undertaking educational, vocational or on-the-job training. The Tribunal comes to this finding by considering Mr Yelda's pain, poor mobility and lack of concentration. Further, noting Secretary, Department of Social Security v Pusnjak (supra), the Tribunal considers that on a broader reading of section 94 of the Act, it should not confine itself to assessing the impact of Mr Yelda's impairments and capacity for work in the abstract, but rather also take into account Mr Yelda's actual work skills and experience and capacity, which are set out above. In this light, it is not realistic to expect that Mr Yelda can be retrained to do any work as submitted by the Respondent.

33. Accordingly, the Tribunal finds that Mr Yelda satisfies subsections 94(2)(a) and (b) of the Act and hence having thus satisfied all the legislative requirements, the Tribunal determines that the Applicant is qualified to receive the Disability Support Pension.

34. Accordingly, pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and the Tribunal substitutes its decision that Mr Yelda is qualified for a Disability Support Pension arising out of his claim lodged.

I certify that the 34 preceding paragraphs are a true copy of

the reasons for the decision herein

Professor T Sourdin, Member

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

Associate

Dates of Hearing 11 January 2002

Date of Decision 11 January 2002

Counsel for Applicant Mr C Colbourn

Advocate for the Respondent Mr G Lozynsky