o~ nd Alt CATCHNORDS Administrative Law - appeal against cancelled invalid pension - appeal to Federal Court from A.A.T. lies only on a question of law {(s.44 of Administrative Appeals Tribunal Act, 1975) - Tribunal did consider both the extent of Appellant's injuries and the extent to which they atfected his ability to find work ~- even if Tribunal placed onus of proof on applicant, in the circumstances the applicant was not disadvantaged - $.43(2) of the A.A.T. Act complied with - reasons given - appeal dismissed Administrative Appeals Tribunal Act, 1975 s.43(2) and s.44 AFIF DIB KHALIL v. DIRECTOR-GENERAL OF SOCIAL SECURITY No. G 346 of 1983 Morling J. 6 December 1984 Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION No. G 346 of 1983 BETWEEN : AFIF DIB KHALIL Applicant AND: DIRECTOR-GENERAL OF SOCIAL SECURITY Respondent ORDER JUDGE MAKING ORDER : Morling J. DATE OF ORDER : 6 December 1984 WHERE MADE : Sydney THE COURT ORDERS THAT; i. Appeal dismissed. 2. No order as to costs. iN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 346 of 1983 eww enw GENERAL DIVISION BETWEEN : AFIF DIB KHALIL Applicant AND: DIRECTOR-GENERAL CF SOCIAL SECURITY Respondent MORLING J. 6 December 1984 REASONS FOR JUDGMENT This 1s an appeal from a decision of the Administrative Appeals Tribunal affirming a decision of the Social Security Appeals Tribunal. An appeal to this Court from the Administrative Appeals Tribunal lies only on a question or law - see 5.44 of the Administrative Appeals Tribunal Act 1975. The Social Security Appeals Tribunal dismissed an appeal brought to it by Afif Khalil (the appellant) against a decision that an invalid pension granted to him be cancelled. The appellant was born in Syria in 1931. He left school when he was about 12 vears of age and after living for a time in Libva he came to Australia in 1972. After arriving in this country he obtained work of an unskilled nature. He was 2. anjured at work in December 1974 and thereafter was off work for some months. Upon return to work he had difficulty in performing his job and after two days he ceased his employment. He has never worked since. In April 1976 he had a cervical fusion operation. Thereafter he made a claim for an invalid pension and in September 1976 the Government Medical Officer reported that he was permanently incapacitated for work. He was granted an invalid pension effective from 16 September 1976. In December 1977 the Government Medical Officer reported that the appellant was permanently incapacitated for work, but in October 1980 a further report was made that whilst he was materially incapacitated to the extent of 50-70%, he was capable of performing any work not requiring bending or lifting weights. In November 1980 the appellant was advised of the respondent's intention to cancel his invalid pension effective from 15 February 1981, because he was no longer permanently incapacitated for work. The appellant appealed to the Social Security Appeals Tribunal against the proposed cancellation of his pension, On 27 July 1982 the Social Security Appeals Tribunal advised the appellant that his appeal was dismissed. The appellant therefore applied for a review of this decision and the review was heard in September 1983 by a senior member of the Administrative Appeals Tribunal. 3. The Tribunal considered evidence (both in written or oral form) from some twelve medical practitioners in varying specialities. They included a Commonwealth Medical Officer. a yadiologist, an orthopaedic specialist, a neurologist surgeon, a physicran. a rheumatologist, and a psychiatrist. Oral evidence was also qiven by the appellant and his son. Reference is made in the decision of the learned Senior Member to some of the evidence which was qiven upon the hearing of the review. There was no dispute that the appellant was suffering from a stqnificant orthopaedic disability. As early as 1981 Dr. Hedberg, a specialist retained by the respondent, was of the opinion that the appellant had "a 50% impairment on orthopaedic grounds" and was unfit for duties requiring heavy lifting or frequent bending or agility. In 1983 he expressed the opinion that the appellant's orthopaedic impairment was 60%. He said that he was "fit for duties which are laraely sedentary and which do not entail heavy lifting or frequent bending. He would be f1t for many types of bench or process work." Dr Hedberg also expressed the opinion that he "would regard (the appellant) as having 100% disability for work involving heavy lifting, long standing and frequent bending. At the other end I would regard him as having a nil percentage incapacity for some activities." The learned Senior Member referred in his decision to evidence from Dr Enrlich that the appellant was not fit for the type of duties that he had carried out 1n the past "but would be capable to cope with lighter work not involving frequent stooping or heavy lifting tasks. Work permitting variety of postures. such as standing about. sitting, or moving about from time to time would be particularly suitable. He referred to Dr Ehrlich's evidence that the appellant could perform office cleaning work provided he could change his particular posture or movement from time to time, and have occasional rests. Reference was also made to Dr Ehrlich's view that the appellant had functional overload which may not be remediable. The learned Senior Member referred to the appearance which the appellant aqave in the witness box and his observations of him. He then referred to submissions put to him by counsel for the appellant, in particular to the submission that. added to the appellants undoubted organic impairment. there was an additional psychiatric problem. He noted that it was argued that. when added to disadvantages which the appellant suffered from his social background ancluding his limited facility with the Enqlish language, the appellant had a percentage incapacity for employment of 85%. After discounting some of the medical evidence qiven in the case the learned Senior Member said: "T am satistied on the probabilities that a ranqe of psychiatric counselling and therapy is vet avallable to improve the motivation of Mr. Khalil and to change the understanding of his family as to his difficulty. It is clear that Mr. Khalil 5. himself believes he could do a cleaner's job and a watchman's 0b. It 1s probable that the wearing of a lumbar brace would also improve his capabilities work-wise. On these bases I conclude that the element of permanence of the applicant's disabilities such as they are (namely indeterminate continuance) has not been demonstrated. But further, JI consider the whole of the evidence establishes on the probabilities that the applicant's disability being principally an organic one, is not of such a degree as to incapacitate from a fairly wide range of possible work situations - including those which the applicant himself admitted. I prefer the opinions of Drs. Ehrlich and Hedberg (substantially similar as they are) as being more soundly based than those of Drs. Guirais, Eisman and Searle. I conclude therefore that the decision under review should be affirmed." Counsel for the appellant submitted that errors of law appear in the reasons given in the above paragraph. She also submitted that, in any event, the reasons did not comply with the requirements of s.43(2) of the Administrative Appeals Tribunal Act which provides that the Tribunal's reasons "shall unclude its findings on material questions of fact and a reference to the evidence or other material on which those findings were based." Counsel for the appellant did not dispute that there was evidence before the Tribunal upon which 1t could properly have atfirmed the decision under review. But 1t was arqued that the Tribunal failed to appreciate that 1n assessing the degree of the appellant's incapacity for work there were two distinct matters to be considered. These matters were said to be, first. a medical evaluation of the appellant's physical or mental impairment and, secondly, an evaluation of the extent to which his physical or mental impairment affected his ability to engage in paid work. Re Panke and Director-General of Social Services (1981) 4 A.L.D. 179 particularly at p. 181 per Davies J., President, and at p. 195 per Mr Hall (Senior Member) and Dr Glick (Member) were relied upon. I adree that the law is correctly stated in Panke's Case and, indeed, I did not understand counsel for the respondent to contend otherwise. It was arqued that although the Tribunal had addressed its mind to the first matter to be considered, it had failed to make an evaluation of the extent to which the appellant's infirmities affected his ability to engage in paid work. in partacular, reference was made to the considerable evidence in the case that the appellant suffered from psychological and functional problems in addition to the physical disabilities flowing from the orthopaedic injury. It was arqued, for instance, that because in its decision the Tribunal did not refer at all to the evidence aiven by the appellant's son to the effect that his father lived the life of an invalid, it might well have been thought by the Tribunal that evidence of this kind was irrelevant to the task of assessing whether the appellant was permanently incapacitated for work. The same observation was made in respect of some of the medical evidence given in the case. It was contended that this evidence was relevant, and even if it was not given weight by the Tribunal, it should have aqiven reasons why it took this view. It was argued that it was not possible to tell from the Tribunal's reasons whether it had undertaken an evaluation of the extent to which the appellant's disabilities affected his ability to find work. Notwithstanding the persuasive arqument put by counsel for the appellant on this point, I think it must fail. It is undoubtedly true that the Tribunal's reasons are brief and, in some respects, elliptical. But I think it sufficiently appears from the Tribunal's reasons that it did consider the extent to which the appellant's disabilities affected his ability to find work. That this is so appears from the references to the appellant's evidence that he could do certain types of work, to the beneficial effect which the wearing of a lumbar brace would have on his work capacity, and to the reference to the "fairly wide range of possible work situations" which the Tribunal thought were within the appellant's capacity. I think there is some substance in the arqument that these considerations, and their affect on the appellant's ability to find work, could have been more fully dealt with in the reasons. but I do not think 1t can be said that the Tribunal misapprehended the nature of the inquiry that 1t was required to undertake in deciding the degree to which the appellant was permanently incarcitated for work, Included in the Tribunal's reasons was a statement thatit preferred the reasons of Drs Ehrlich and Hedberd to those of cther doctors whose reports or evidence was before 1t. 8. Dr Ehrlich gave evidence of various kinds of work that he thought were within the appellant''s capabilities, and Dr Hedberg qave evidence to the same effect. Io have referred to some of this evidence earlier in these reasons. I think the Tribunal's reasons for decision must be taken as incorporating a reference to this evidence. Further, the Tribunal said elsewhere in its reasons that it did not accept that the depression from which the appellant suffered played a "major incapacitating role". I think this indicates that the Tribunal gid direct its mind to the question whether the appellant's adoption of an invalid role was a factor to be considered in assessing the deaqree of his medical disability, and the weight which should be given to that factor. Some criticism was made of the statement in the Tribunal's reasons that it was probable that the wearing of a lumbar brace ould improve the appellant's work capacity. It was said that there was no evidence to support such a statement. Even if this 1s the case, it would not invalidate the Tribunal's reasons or demonstrate an error of law which would justify the setting aside of the Tribunal's decision. The statement as to the effect of Wearing a brace was made in the context of arriving at a conclusion that "the element of permanence of the applicant's disabilities ... has not been demonstrated." However, 1t is apparent from what follows in the Tribunal's reasons that even if it had been persuaded that the appellant's disabilities were permanent, they were not of 3. such a kind as to lead to the requisite deqree of incapacity. In other words, the Tribunal''s decision would have been the same even if it had not been of the view that a lumbar brace would be of assistance to the appellant. It was further submitted that the Tribunal erred in law in placing an onus on the appellant to prove that he was permanently incapacitated to the requisite deqree. Since the existing determination favoured the appellant, and the decision which was the subject of review was a decision to cancel an invalid pension that had already been granted, it was said that insofar as there was any evidentiary onus + it lay upon the respondent; Phillins v. The Commonwealth (1964) 110 C.L.R. 347 and The Commonwealth v. Muratore (1978) 141 C.L.R. 296 were relied upon. In my opinion the short answer to this ' submission is that even 1f the Tribunal did err in this respect, the error plaved no part in the decision at which it arrived. fhat the Tribunal did was to consider all the evidence and to make a finding "on the probabilities" adverse to the appellant. Thus, even if it had placed any relevant , onus of proof on the respondent, that onus would have been discharaed to the satisfaction of the Tribunal. In these circumstances it is wumnecessary to consider whether, having regard to the nature of the proceedings before the Tribunal. there was an onus of proof on either the appellant or the respondent. There is much to be said for the 10. view that no such onus existed: see McDonald Vv Director-General of Social Security (1984) 1 A.L.R. 6. In that case Woodward J. said. at p. ll: "If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way onthe balance of probabilities, it will be necessary to analvse carefully the decision it is reviewing. If, for example, it is a decision whether or not to cancel a pension in the liaqht of chanaged circumstances, then it has failed to achieve the statutory requirement of reaching a state of mind that the pension should be cancelled." Had the Tribunal's decision in this case depended upon a finding by it that, although the appellant was incapacitated to the requisite degree, his incapacity was not permanent, there would have been a strong arqument that its decision should be set aside. { say this because there does appear to be some warrant for holding that the Tribunal thought that there was an onus on the appellant to demonstrate the permanence of his disability. The Tribunal concluded that "the element of permanence of the applicant's disabilities ... has not been demonstrated." Bearing in mind that the decision was whether to cancel (as distinct from grant) a pension, this finding should have led the Tribunal to conclude that it had not reached a state of mind that the pension should be cancelled. But as I have already indicated, the Tribunal's view as to the permanence of the appellant's disabilities did not play any part in 1ts ultimate finding. It is plain that il. were the matter to be returned to the Tribunal it would reach the same conclusion and would affirm the decision under review. It remains only to consider the arqument that the Tribunal did not comply with the requirements of s.43(2) of the Administrative Appeals Tribunal Act. It follows from what I have so far written that I think that the Tribunal has given reasons for its decision. It has referred in its decision to some of the evidence upon which it has based its findings. in my opinion its decision does refer to its crucial finding of fact, namely. that the appellant is not incapacitated from engaging in a wide range of possible work situations. Moreover, there is suffacient reference in its reasons to the evidence and material upon which that finding was based. For these reasons I am of the opinion that the appeal must be dismissed. By agreement between the parties, there W111 be no order as to costs. T cortazy ths nn Sun (0s) =o "og are a true copy of the prece. =T! Reusu.o 2dr Ged -p.ent herein of his Honour q ae Mir, Justice .urltne- Ath Associate Dated: &/1A[%