FEDERAL COURT OF AUSTRALIA Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 ADMINISTRATIVE LAW – appeal from a decision of the AAT – section 94 Social Security Act 1991 (Cth) – whether the appellant had a 'continuing inability to work' – whether impairment assessment under the Act correctly calculated – definition of 'any work' within the Act – Held: decision of the AAT affirmed – appeal dismissed. Administrative Appeals Tribunal Act 1975 (Cth) s 44(1), Schedule 1B Re Crossland and Secretary Department of Family and Community Services [2004] AATA 864 cited Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 cited CLAYTON ROBERT CROKER v SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS AND ADMINISTRATIVE APPEALS TRIBUNAL NSD 776 OF 2007 BRANSON J 30 OCTOBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 776 OF 2007 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: CLAYTON ROBERT CROKER Appellant AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BRANSON J DATE OF ORDER: 30 OCTOBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 776 OF 2007 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: CLAYTON ROBERT CROKER Appellant AND: SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BRANSON J DATE: 30 OCTOBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 Mr Croker has complained about tinnitus and symptoms affecting his hands since about 1990. Prior to the onset of the symptoms of which Mr Croker complains he held various jobs, the last of them being a casual job as a butcher. In early 1993 Mr Croker unsuccessfully attempted clerical work. No causal pathology that explains Mr Croker's symptoms has ever been identified. 2 In March 1994 Mr Croker applied for disability support pension ('DSP'). He was assessed in August 1994 as having a 10% impairment from a somatoform pain disorder and 15% impairment from pain in his hands that caused difficulty with lifting. He was granted a DSP and continued to receive it for twelve years. 3 By letter dated 6 September 2005 Mr Croker was notified that payment of his DSP would cease on 18 October 2005. By a letter to the Secretary, Department of Family and Community Services, Mr Croker requested a review of the decision to terminate his DSP. On 2 December 2005 an Authorised Review Officer ('ARO') affirmed the termination decision. On 3 January 2006 Mr Crocker lodged an appeal from the decision of the ARO with the Social Security Appeals Tribunal ('SSAT'). The SSAT affirmed the decision of the ARO. Mr Croker applied to the Administrative Appeals Tribunal for review of the decision of the SSAT. On 15 April 2007 the AAT affirmed the decision of the SSAT. 4 This is an appeal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act') from the decision of the AAT. An appeal under s 44(1) is an appeal on a question of law. STATUTORY REGIME 5 Section 94 of the Social Security Act 1991 (Cth) ('the Act') relevantly provides: '(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; … (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; … … (5) In this section: … work means work: (a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and (b) that exists in Australia, even if not within the person's locally accessible labour market.' 6 The Impairment Tables referred to in s 94(1)(b) are found in Schedule 1B of the Act. Schedule 1B also contains an introductory section that explains the purpose of the tables and the proper approach to assessing impairment in relation to work by reference to them. In particular the introduction stresses that the tables are function based rather than diagnosis based; that is, each loss of function is to be assessed, whether caused by one or more medical condition, but the double assessment of a single loss of function is to be avoided. REASONS OF THE AAT 7 The reasons for decision of the Tribunal disclose that it identified two primary issues that it was required to determine; first, the impairment rating appropriate for Mr Croker's physical and psychiatric impairment (s 94(1)(a) and (b)) and secondly, whether Mr Croker has a continuing inability to work (s 94(1)(c)). 8 The Tribunal identified the essential questions raised for its determination so far as Mr Croker's impairment rating is concerned as: (a) whether the symptoms affecting Mr Croker's hands and his undifferentiated somatoform disorder are separate conditions or otherwise merit separate impairment assessment; (b) which of the Impairment Tables should be used to assess Mr Croker's impairment; and (c) what is the appropriate rating of Mr Croker's impairment? 9 The Tribunal noted that despite investigations from 1993 to August 2006 there was no evidence of any pathological condition to explain the symptoms that Mr Croker calls RSI. It accepted an expression of expert opinion that the appropriate diagnosis in respect of Mr Croker's hand condition was 'undifferentiated somatoform disorder' and that the diagnosis of RSI was simply an alternative explanation or diagnosis for that condition. 10 The Tribunal took the view that Mr Croker's functional impairment should properly be understood as involving activity limitations which he has imposed in order to forestall or avoid the recurrence of the symptoms he describes as RSI. It therefore determined that his impairment was a behavioural pattern which has been induced by his undifferentiated somatoform disorder. The Tribunal concluded that the appropriate table for the assessment of Mr Croker's functional impairment was 'Table 6 – Psychiatric Impairment' rather than 'Table 3 – Upper Limb Function'. 11 The Tribunal found that the evidence demonstrated that Mr Croker's somatoform disorder had significantly disrupted his ability to work. Having regard to the terms of Table 6, the Tribunal concluded that the appropriate rating for Mr Croker's impairment was 20 points. 12 As this gave Mr Croker an impairment of 20 points or more for the purpose of s 94(1), it was necessary for the Tribunal to determine if it was satisfied that Mr Croker's impairment was 'of itself sufficient to prevent [him] from doing any work within the next 2 years' (s 94(2)(a)). 13 On the issue of whether Mr Croker has a continuing inability to work, the Tribunal noted that 'work' in the context of s 94 meant at least 30 hours work per week at award wages or above in an Australian job. It further noted that 'work' should be understood to mean work of a kind that is within Mr Croker's actual capacity without the need for training. After giving consideration to the nature of Mr Croker's disability; the unlikelihood of its improving in the foreseeable future; his studies, training and experience; and relevant expert opinions, the Tribunal concluded that Mr Croker could be successfully reintroduced into the workforce within the next two years. The Tribunal identified customer service, call‑centre and light retail work as kinds of employment that were within Mr Croker's functional capacity. It was not satisfied that Mr Croker's impairment was 'of itself' sufficient to prevent him from doing any work independent of training within the next two years. QUESTIONS OF LAW 14 Mr Croker's amended notice of appeal identifies four questions of law as the subject matter of the appeal (TNT Skypack International (Aust) Pty Limited v Federal Commissioner of Taxation (1988) 82 ALR 175 per Gummow J at 178; Birdseye v Australian Securities and Investment Commission (2003) 76 ALD 321 per Branson and Stone JJ at [6]-[31]). 15 The first question concerns the true meaning of the words 'of itself' in s 94(2)(a) of the Act and, in particular, whether they are apt to include expert medical opinions concerning Mr Croker. 16 The second question concerns the true meaning of the words 'any work' in s 94(2(a) of the Act and, in particular, whether those words are apt to include work for which Mr Croker is over qualified and which might, as he contends, be demeaning or psychologically damaging for him to undertake having regard to his educational qualifications. 17 The third question arises out of the language of the introduction to the Impairment Tables. The issue raised by the amended notice of appeal is whether, having regard to the requirement identified in [11] of the introduction of allocating separate scores for each impairment where more than one impairment is present, a somatoform disorder should attract a score as a physical impairment and a separate score as a psychiatric impairment. 18 The fourth question concerns the meaning of the word 'rehabilitation' and whether there can be rehabilitation of a permanent condition. 'of itself' 19 It is not entirely clear how Mr Croker, who appeared for himself, sought to advance his appeal by reference to the true meaning of the words 'of itself' in s 94(2)(a) of the Act. He made the following submission: 'The point I am trying to make is that there is no vocational assistance and also there is a 30 hour a week threshold, the evidence clearly points to contradict [the Senior Member's] decision. Your Honour, I would say that in the amended notice of appeal do the words "of itself" include expert medical opinion of the applicant that are held by the respondent.' 20 Mr Croker went on to state that the respondent held perhaps six or seven medical reports in which differing opinions were expressed about his condition and his capacity to work. He suggested that the Tribunal had 'cherry picked' the medical reports rather than taking them all into account. 21 Mr Croker's submissions made it plain that he did not challenge the meaning that the Tribunal attributed to the words 'of itself'; his concern was with the findings of fact that the Tribunal made by reference to the medical reports. An appeal under s 44(1) of the AAT Act is not an appeal of the kind that allows this Court to re-evaluate the evidence before the Tribunal for the purpose of making fresh factual findings. 22 Nonetheless, it is appropriate to observe that the Tribunal carefully analysed the medical and other reports before it and provided persuasive reasons for preferring some expressions of expert opinion over others. I see no reason to conclude that any error affected this aspect of the Tribunal's reasons for decision. 'any work' 23 With reference to the true meaning of the words 'any work' in s 94(2)(a) of the Act, Mr Croker submitted that the words mean work for at least 30 hours a week and work that is not 'benign'. 24 It is plain that the Tribunal understood that 'work' in the context of s 94 at the relevant time meant work that is for at least 30 hours per week at award wages or above. At [59] of its reasons for decision, the Tribunal set out the terms of s 94(5) of the Act which define 'work' in this way. Moreover at [71], in evaluating the various expressions of expert opinion concerning Mr Croker's ability to work, the Tribunal again referred to 'a 30 hour working week'. The medical assessment reports concerning Mr Croker on which the Tribunal placed particular reliance all indicated that Mr Croker could work 30 hours a week either immediately or within 6 months to two years. 25 Mr Croker's reference to work that is 'benign' appears to derive from an observation made by the Full Tribunal in Re Hamal and Secretary, Department of Social Security (1993) 30 ALD 517 when considering the application, in the circumstances of that case, of s 94(2) of the Act before it was amended to its present form. At [43] the Full Tribunal said: 'When considering the issue of work in this context, the tribunal is of the view that it is the "normal" workplace against which a person's abilities are to be judged, not the workplace of the "benign employer".' 26 It appears that Mr Croker's real complaint is that the Tribunal gave consideration to types of employment that were not sufficiently intellectually challenging for him, or alternatively of an insufficient status, when it accepted evidence that he was capable of undertaking customer service, call‑centre or light retail work where excessive or repetitive use of his hands would not be required. Mr Croker submitted: 'I don't think there is any real benefit in doing repetitive customer services even for 30 hours a week to a state where, well, at the moment I would say I wouldn't be using any of my intellect at all in a position like that, your Honour. … Well, in the retail meat industry, you know, I suppose when I was working and the amount of time that has elapsed today it would not put me in a better position. I would say I would virtually be stepping back into really a position where I was doing things which I knew caused me injuries and obviously there could be potential harm or psychological harm again and even if there is a psychological injury as well the potential there would be raised even further.' 27 I am willing for present purposes to assume (I do not so find) that the language of the definition of 'work' in s 94(5) admits of some qualification of the usual broad meaning of the word 'work' (but see Re Crossland and Secretary Department of Family and Community Services [2004] AATA 864). However, I do not accept that the Act discloses an intention that a person with tertiary qualifications is to be regarded as a person with a continuing inability to work, and thus as a person entitled to taxpayer funded DSP, just because the person's impairment prevents him or her from undertaking professional or other high status employment. A person able to do work of a character undertaken by a very large number of Australian taxpayers (ie customer service, call‑centre or light retail work) is not, in my view, a person with a continuing inability to work within the meaning of the Act. 28 I see no reason to conclude that the Tribunal erred in its understanding of the words 'any work' in s 94(2)(a) of the Act. Separate Scores for Physical and Psychiatric Impairment 29 As mentioned above, the Tribunal identified the question of whether Mr Croker's bilateral hand discomfort and his somatoform disorder are separate conditions or otherwise merit separate impairment assessment as an essential question for its determination. It gave careful consideration to this question by reference to the expert evidence before it. It noted that there was no evidence that any past examination had revealed a basis for RSI as a medical condition suffered by Mr Croker. The Tribunal concluded that Mr Croker's 'RSI' was not a separate condition from his somatoform disorder. It concluded that the only diagnosis that could be assigned a rating under the Impairment Tables was Mr Croker's somatoform disorder. In this respect the Tribunal referred to [4] of the introduction to the Impairment Table which states: '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.' 30 The basis of Mr Croker's concern with the above conclusion of the Tribunal is not clear. The Tribunal found that his impairment is of 20 points within the meaning of s 94(1)(b) of the Act. A higher assessment would not have improved his position. The Tribunal's decision was not based on a conclusion that he did not meet the requirements of s 94(1)(b) but rather on a conclusion that s 94(1)(c) did not apply to him. In any event, I can identify no error affecting this aspect of the reason for decision of the Tribunal. 'rehabilitation' 31 Mr Croker submitted: '… a permanent condition cannot be rehabilitated and any long term condition that is an impairment should require extensive rehabilitation after extremely long absenteeism from the workplace for "any work".' 32 This submission reveals that Mr Croker seeks to challenge the Tribunal's finding of fact that, with 'a period of re-familiarisation with a working environment to develop the personal confidence that comes with such familiarity', Mr Croker will be able to do some work within the next two years (s 94(2)(a)). As mentioned above, this appeal is not an occasion for this Court to review the factual findings of the Tribunal. 33 I am not satisfied that any legal error affects the Tribunal's understanding of s 94(2) or its failure to be satisfied that Mr Croker's impairment is not of itself sufficient to prevent him from doing any work within the next two years. CONCLUSION 34 As indicated above, this is an appeal on a question of law. Mr Croker has not identified any error of law affecting the decision of the Tribunal. 35 The appeal will be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 30 October 2007 Counsel for the Appellant: The appellant appeared in person. Counsel for the First Respondent: Ms D Watson Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 12 September 2007 Date of Judgment: 30 October 2007