Re Robert Meath and Director-General of Social Security [1984] AATA 279 (18 July 1984)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: ROBERT MEATH
And: DIRECTOR-GENERAL OF SOCIAL SECURITY
No. N83/104
Social Security

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
Miss Cecily E. Backhouse (Senior Member)

CATCHWORDS

Social Security - invalid pension - cancellation - trained butcher - no other skills - back injury at work - persistent low back pain - out of workforce 9 years - three periods of rehabilitation - no rehabilitation prospects - whether permanently incapacity for work to the degree of not less than 85% as required by Ss. 23 and 24 of the Social Security Act.

Social Security Act 1947 Ss. 23 and 24.

Re Panke and the Director-General of Social SecuritY (1981) 4 ALD 179;

McDonald v. Director-General of Social Security Full Federal
Court 27 March 1984.

HEARING

CANBERRA
18:7:1984

ORDER

1. Tribunal set aside the decision of the
delegate of the Director-General of
Social Security cancelling the
applicant's invalid pension and remits
the matter to the Director-General for
reconsideration in accordance with the
direction that the applicant is and has
at all material times since the date of
cancellation been qualified to receive
an invalid pension.

2. As the applicant has been in receipt of
sickness benefit since the date on
which his invalid pension was
cancelled, the Tribunal reserves
liberty to apply in the event of there
being any disagreement as to the
applicant's entitlement consequent upon
this decision.

DECISION

1. The applicant has sought review by this Tribunal of the decision of the respondent, made through his delegate, on 20 January 1983 affirming the decision of an officer under the Social Security Act 1947 to cancel the applicant's pension.

2. The applicant lodged a claim for invalid pension on 22 April 1977 and was granted the pension from 28 April 1977. The major cause of his invalidity was shown on the Commonwealth Medical Officer's medical report as "back injury" and review in twelve months' time was recommended. Upon that review the Commonwealth Medical Officer found the applicant to be permanently incapacitated for work but he did not specify a date for further review. He was referred to rehabilitation in late 1978 or early 1979. An assessment regarding permanent incapacity (T.10) dated 3 April 1979 showed that the applicant was suffering from lumbar disc degeneration and that he was permanently incapacitated for work and recommended review in two years' time. Upon that review the Commonwealth Medical Officer found the applicant to be permanently incapacitated for work and recommended that review take place in May 1983. However, he was examined by Dr. Bloch on 4 February 1982, who expressed the opinion that there were no signs to support the applicant's symptoms and that he was fit for all duties he could be motivated to do, and that he was not eligible for the invalid pension. He was medically examined by Dr. Hedberg on 5 May 1982, who assessed his orthopaedic disability of the order of 30%. Having received these two reports, the delegate of the Director of Health considered the applicant not to be permanently incapacitated for work to the degree of 85%. In the light of this report a decision to cancel the applicant's pension was taken and he was advised accordingly by letter dated 2 August 1982. The cancellation was to take effect after payment of the pension due on 21 October 1982.

3. It should be noted here that on the 12th October 1976 the applicant was admitted to Royal South Sydney Hospital for vocational assessment of his low back pain. He remained an in-patient until 26 November 1976. The discharge summary from that hospital (T.12) indicated that he was to be reviewed by Dr. Baggott in about two months' time. In November 1978 Mr. Meath approached the social worker at Blacktown about the possibility of rehabilitation and was referred shortly thereafter to the Rehabilitation Centre at Mount Wilga. He was discharged from that centre on or about 29 March 1979 on completion of his training. An assessment regarding a permanent incapacity was made on 3 April 1979 by the Rehabilitation Medical Consultant that the applicant was permanently incapacitated for work within the meaning of the Act.) 4. The applicant appealed to the Social Security Appeals Tribunal against the cancellation of his pension on 18 August 1982. On the hearing of his appeal the Social Security Appeals Tribunal had before it the applicant's rehabilitation file, a social worker's report dated l September 1982 and his pension file containing the medical reports of Drs. Bloch and Hedberg. At the time of the hearing of his appeal the applicant was undergoing a further course of rehabilitation at Mount Wilga. That Tribunal dismissed his appeal on 13 January 1983.

5. Mr. Meath is 45 years of age. He attended school until 2nd year at Granville Opportunity School, which was a school for slow learners. He had difficulty in learning the basic subjects of reading, writing, spelling and arithmetic. On leaving school he went into the butchering trade in which he worked for 5 years for his qualification. He then worked in a number of retail butcher shops, including Woolworths. On 19 June 1975 he had an accident at Woolworths at Camden where he was relieving. He was packing the refrigerator room with cartons of meat. The room had bars on the top and on the walls from where the meat hung. The applicant had placed the cartons on a trolley and was bringing it into the room to unload the meat in the back dock when a piece of meat came down the delivery rail and hit the trolley and the trolley hit him against the wall. He was pinned between the trolley and the carcases of meat on the bar. After this incident occurred he saw the manager, who sent him to the chemist. He could not recall whether he did any more work that day and neither could he recall whether he drove his car home to Mount Druitt where he was living at that time. He thought the accident happened on a Friday. He recalled he felt very sore in his back, his stomach, his legs and shoulders. He was passing blood when he went to the toilet. He went to his local doctor on the following Monday, who arranged for some X-rays of his kidneys to be taken. He did not return to work until the following January. Between the date of the accident and January 1976 he was receiving physiotherapy and also had traction and auto-sound and a treatment on his spine. He was back at work two days when he had a further accident. He walked out of the refrigerator and stepped on to a rubber mat and went for a slip. He woke up in the Castle Hill Medical Centre. (He says he had not coped very well during the two days back at work. He had been very sore and his arms and back had ached and he could not lift anything.) Later he was taken to Blacktown Hospital where he remained in Casualty for a number of hours and was then sent home. His local practitioner, Dr. Vaz, came to see him at home the next morning. Later Dr. Vaz referred him to Dr. Irani, an orthopaedic surgeon. In this incident he had jarred his back again and made it worse than it was before. He had more pain in his lower back, shoulders, his arm, leg and head. He got these pains regularly right up to the present time. Dr. Irani had prescribed manipulation and physiotherapy and later arranged for him to have traction every day for about six weeks. This made him feel worse. After this he asked Dr. Irani to try and get him into the Royal South Sydney Hospital for rehabilitation. He went there on 12 October 1976 for a period of eight weeks. There he came under the care of Dr. Baggott. On his discharge from that hospital Dr. Baggott told him that there was nothing that they could do at that time. He was in receipt of sickness benefit from June 1975 until he was granted a pension on 1 June 1977, effective from 28 April 1977. Some eighteen months later the applicant was interviewed by a social worker at the respondent's office at Blacktown and rehabilitation was recommended. Following medical examination on 29 November 1978 the Rehabilitation Medical Consultant recommended that the applicant be referred to Mount Wilga back programme with a four-week review period to see if there was anything that could be done to assist him and suggesting he be given training in bookkeeping and business principles if he was amenable to this, with a view to, perhaps, shop management or opening his own shop. On 5 March 1979 he was admitted to the special back programme at Mount Wilga with no involvement in vocational counselling. He was discharged on 29 March 1979. It was noted on his rehabilitation vocational progress report (T.23) on his discharge that he was on Tryptanol therapy to relieve his anxiety and depression and that he was to remain on the invalid pension. Clinical notes taken whilst he was undergoing the back programme at Mount Wilga indicated on examination that Mr. Meath was a highly anxious and emotional individual, who appeared quite motivated to abandon the invalid pension status which he was on and that he would require psychological and psychiatric support with probable prolonged anti-depressant therapy, and an alteration in his analgesic regime was recommended. It was also noted that there was a large psychosomatic element in the applicant's condition and that physical signs were inconsistent. An X-ray report of 6 March 1979 showed there was narrowing of the upper two lumbar discs, with slight irregularity of the anterior- inferior aspect of the body of L.l. It was had noted the changes shown could well be secondary to a previous Scheuermann's disease. There was no evidence of any other abnormality in the lumbar spine or sacro-iliac joints. On his discharge summary from Mount Wilga Dr. Zamel noted :

"Mr. Meath has completed Phase l of the
programme and is considered suitable for
discharge to his own home, remaining on the
invalid pension.

Although significant gains have been made,
these have not been sufficient for him to be
directed towards vocational goals and return
to work in his case is highly unlikely.

We will maintain social worker contact with
him and his wife to re-enforce the counselling
he has received and to follow up, an
appointment at the Service Centre has been
made for him in 6 weeks.

An increase in medication dosage will
hopefully reduce his anxiety and pain factors
but it is hoped that greater understanding of
his own physical tolerances will reflect his
most positive gain in these areas.

In general terms, this man remains extremely
anxious and at times depressed regarding his
disability. Although he does suffer from some
lumbar disc compression, the extent of the
pain response exhibited appears to be related
to a large psycho-neurotic overlay."

6. On follow-up at the Service Centre on 9 May 1979 the applicant confirmed physical improvement, particularly in regard to his mobility level and the degree of pain which he then had. This was attributed to some degree to the alteration in his analgesic regime. It was noted he had become involved with various local activities. It was also noted that he had been involved in the carpentry area while at Mount Wilga and his wish to be carrying this out in some form of workshop at home. Mr. Meath agreed to make his next project within the next six months the building of a small workshop area for his own use and gradual tooling-up so that he could work in the hobby area as a woodworker and the manufacturing of toys and picture framing. He was to contact the centre in six months for a follow-up purpose to determine whether re-admission to Mount Wilga would be realistic. He re-attended Mount Wilga on 11 October 1982 and came under the medical supervision of Dr. Seaton. An X-ray report of 20 October 1982 relating to the applicant's lumbo-sacral spine noted :

"There is a shallow lumbo-dorsal scoliosis
with a convexity to the right. There are disc
degenerations from the level of D.ll to L.3
inclusive. There are moderate changes due to
spondylosis deformans at these levels. There
are lumbar-type apophyseal joints at the level
of L.5/S.l. which may give rise to low back
pain and/or discomfort in some cases. No
other bone or joint abnormality is seen in the
lumbar area and the sacro-iliac joints appear
normal."

7. He was apparently attending daily at the Centre at Mount Wilga at this stage and on his reporting that he had been experiencing pain and fatigue from coming to the Centre full time he was changed to three days a week. Whilst at the Centre he was working in craft and carpentry. On his rehabilitation vocational progress report it was noted on 20 November 1982 that that Mr. Meath was to have a myeologram to see if surgery was indicated, but that either way the Rehabilitation Medical Consultant felt he was definitely pensionable. He was discharged in December 1982.

8. Evidence was given in the applicant's case by the applicant himself, his wife, his brother, Mr. B.B. Meath, Dr. J.M. Vaz, general practitioner, and Dr.D.G. Seaton. Evidence was given in the respondent's case by Dr. E. Hedberg, orthopaedic surgeon, and Dr. F. Ehrlich, general surgeon. In addition to the medical reports and the T.Documents the Tribunal had before it the following reports :

Report of Dr. Cyrus N. Irani of 17 June 1983
(Exhibit A);

Dr. Joseph M. Vaz, of 1 July 1983 (Exhibit B);

Dr. D.G. Seaton, undated, (Exhibit C);

Dr. F. Ehrlich of 13 October 1983 (Exhibit 1).

9. In his evidence Mr. Meath recounted the two incidents which had taken place whilst he was working at Woolworths at Camden. Mr. McGovern of Counsel for the respondent made a substantial challenge on the credibility of the applicant and for this relied on the evidence before the Tribunal relating to the circumstances of the first of his two work accidents and the nature of the injuries which he received from that first accident. I propose to deal with this aspect at this point of my reasons. Mr. McGovern pointed to the discrepancy in the history of the incident of 19 June 1975, being the date of the applicant's first work injury. Firstly, Mr. McGovern referred me to the history taken by Dr. Cyrus N. Irani of his work accident. Dr. Irani recorded that the applicant was dragging boxes of meat whilst at work at the Woolworths store at Camden when he heard a "snap" in his lower back and started to develop low back pain. Next, he referred me to the report of Dr. Joseph M. Vaz of l July 1983 (Exhibit B) which recorded that Mr. Meath had been under his care since May 1974; "that in June 1975, he was treated for urinary tract infection; at the same time, he suffered a lumbar strain at work, doing heavy lifting". As earlier stated the applicant told the Tribunal in his evidence in chief that he was hit by a trolley which crashed him into a bar on the wall. In cross-examination he said there was 1800 lbs. of meat on the bar that came into the room and hit the trolley which in turn hit him. He had not seen any of the medical reports. It was put to him that when he went to Royal South Sydney Hospital in 1976 he gave a history of being jammed between a trolley heavily loaded with meat and a wall at work in June 1975. He agreed with this description and that that was the history he had given to everyone else. Mr. McGovern then read to the applicant the history recorded by Dr. Irani in his report of 13 October 1981 and then asked :

"Is that what you told Dr. Irani?---I do not think
so, no, because it did not happen that time.
(sic) It was a trolley, and the way I was
pushing, that is the way it happened, and that
is what is on the compensation claim, and that
is the way it happened. You can go back
through the compensation claim."
So it is definitely not the case that you were
dragging boxes of meat?---I was dragging meat
off the trolley and packing meat in there all
day, but I cannot remember saying that to Dr.
Irani at the time.

MISS BACKHOUSE: What was your job at that
time?---Re-packing the refrigerator.

What did that involve?---That was involving
movement of cartons of meat from the trolley
and taking it into the room, taking the
cartons off and putting them on the floor.
That is the only way you can do the packing,
20 cartons in there at a time.

The trolley was being used as a conveyor?---Yes, as
a conveyor.

MR. McGOVERN: When you were packing boxes of meat
on this day the way you injured your back was
not in the process of dragging boxes, was
it?---What I said before, with the meat
packing and the trolley, and I have always
said that, and that is how it happened."

10. He was then read the relevant portion of Dr. Vaz's report and asked :

"Did you tell Dr. Vaz you did heavy lifting and
that is what caused your back strain?---I
cannot think back to 1975 to be honest. There
are 4 days of blankness from my point of view
that I cannot remember, from the day it
happened till the Monday afternoon.

Are you suggesting now that you have some doubt as
to whether it was in the process of being
pinned against a wall by a tray of meat that
you sustained the back injury?---That is how
it happened, with me being pushed into the
trolley and the meat came in after it.

It was not as a result of any heavy lifting work
that you injured your back in 1975?---I was
lifting everything before that.

I am talking specifically about that back injury in
1975?---In 1975 that is how it happened, I got
pushed into the wall with the bar with the
trolley, with the meat on it. There is always
a lot of lifting with butchering."

11. I perhaps should have said earlier in these reasons that Mr. Meath had a slight speech impediment - in the nature of a lisp and on occasions there was difficulty in understanding some of his words. He also ran some of his sentences together and it was not entirely easy to follow the sense of what he was saying on occasions. His original description of his accident on the 19th June 1975 was given as follows:

"I was inside packing the refrigerator and
generally, you people know, all butchers'
refrigerator, it is a small room, say 12 x 12
and it has bars on the roof, bars on the wall
and that is where the meat hangs, and there
are gates to open up that the meat comes into,
to pick it off the main rail. I had cartons
on a trolley and I was bringing that into the
room and taking the meat off the trolley to
make the room tidy, and the meat came out the
back, in the back dock, it came down and
catipulted into the room, the trolley threw me
into the bar and crashed me into the bar."

12. I think it is understandable that errors could have occurred in the recording of the history given by the applicant to the various doctors who examined him. I do not place very much importance on these discrepancies although I do find it a little difficult to understand the introduction of the "snap" in his lower back given to Dr. Irani. I was, however, more troubled by the evidence given by Dr. Vaz relating to the applicant's initial visit to him after the accident on the 19th June 1975. In his evidence before the Tribunal Dr. Vaz gave this evidence:

"When Mr. Meath came to see you in June 1975 it was
to complain about a urinary tract infection;
is that right?---Yes, I diagnosed it as a
urinary tract infection.

And that was the prime complaint he made to you on
that particular day he saw you?---the
symptoms.

And it was said as an afterthought that he
mentioned to you he had this lifting incident
at work; is that right?---Yes, he mentioned it
to me.

Can you remember what he said about this lifting
incident?---I cannot really recall but I think
it was some heavy lifting at work which had
done his back in.

You would regard it as very important to record an
accurate history about injuries like that; is
that right?---Yes.

And of course of 1st July 1983 you specifically
mentioned heavy lifting, and I take it it is
because of something you were told by the
applicant yourself; is that right?---Yes I
think I have noted there as lifting.

And there was no mention to you, was there, in June
1975 of any injury relating to a trolley that
hid pinned him in some way and involving his
front regions, as it were?---I cannot
definitely recall that. There might have been
some history. There was some mention maybe of
a trolley but I cannot recall for sure.

Such a matter would be recorded in your cards,
would it?---I would have made a note of the
trolley and being pinned down.

I think you would agree with me, and if you want to
look at the card say so. There is no such
reference in the cards?---No. I only have a
note of some heavy lifting.

That would be the history you were given; is that
so?---Yes, it would be."

13. A few questions later he gave the following evidence:

Doctor, in relation to Mr. Meath consulting you in
in fact in June 1975, he was complaining of
spasmodic abdominal pains, was he not?---On
the very first occasion, is it?

Yes, in June 1975?---I would have to refer to the
notes. I presume if I have it in the notes,
they are ---

Here you are, Doctor? What date did you say?

23rd June 1975 he was complaining of spasmodic
abdominal pains, high coloured
urine,etc.?---Yes that is why I thought it was
a urinary tract infection at that stage. The
urinary tests showed infection there.

And I think in relation to the lifting of the heavy
objects, the history of that was given to you,
Mr. Meath told you that he continued work on
that day and on the following two days; is
that right?---Yes, that is what - yes.

And in July 1975 he saw you again and was still
complaining of general weakness?

July 1975-and some persistent pain?--In the back.

And in the groin as well; is that right?---The
persistent pain in the back was it?

And the groins?--Yes.

MISS BACKHOUSE: Persistent pain in the back and
groins?---Yes, that was in July, yes.

July 1975.

MR. MCGOVERN: And you regarded that pain in the
groins as being referable to this urinary
tract infection?---It can occur with both.
For the back complaint you can get a groin
pain as well as the urinary tract infection,
so we had treated the urinary tract infection
at that time and the urine was clear, and that
is why I followed up on the back.

I think your ultimate opinion was that whatever the
condition as far as the back was concerned,
its symptoms had been overshadowed by the more
distressing symptoms of the urinary tract
infection?---When he first came on 23rd June,
yes."

14. In re-examination he was asked whether the high coloured urine was symptomatic of both backpain and a kidney complaint and Dr. Vaz replied that he would say it was more of urine infection. A check of the calender for 1975 shows that the 19th June 1975 was a Thursday. It follows that Mr. Meath did not see the Dr. Vaz until the following Monday, the 23rd June, 1975 which makes it possible for Mr. Meath to have continued working on the Thursday and on the Friday and Saturday following his accident at work. Mrs. Meath, the applicant's wife, said in her evidence that she did not recall what time her husband came home on the afternoon of 19th June 1975 because she had just got back from Royal Prince Alfred Hospital where her father was dying. She recalled her husband appeared to her to be very sick and in a lot of pain. He was crying, he was very cold, he was passing blood or he was trying to go to the toilet and could not and she put him to bed. The history recorded by Dr. Vaz in his report of 1st July 1983 and his oral evidence is consistent with the applicant receiving a back injury at his place of work on the 19th June 1975. It throws some doubt on the severity of the injury the applicant received in this accident, and places more prominence on the urinary tract infection from which he was apparently suffering at the time. Nevertheless, his complaints of pain in his back persisted resulting in Dr. Vaz referring the applicant to Dr. Irani on the 21st July 1975. Of course, he had a second accident in the following January after his return to work for two days with his former employer, and I have already set out the treatment which he has received, his admission to Royal South Sydney Hospital and his attendances at the Mt. Wilga Rehabilitation Centre. Mr. Meath gave evidence that he received $23,000 for workers compensation. It would seem this payment was in respect of the injuries received by him in both work accidents. There was no challenge to the fact that an accident occurred in which the applicant was involved at his place of work on the 19th June 1975 and I accept that such an accident did occur and that the applicant received a back injury in that accident.

15. When Dr. Irani saw the applicant on 21st July 1975 he diagnosed that the applicant was suffering from a lumbosacral strain. Under his care the applicant had had intensive physiotherapy, spinal manipulations and the wearing of a lumbar brace. This was followed by his period at the rehabilitation centre at Royal South Sydney Hospital in October/November 1976. Dr. Irani reported on 13th October 1981 (T14) that more recently the applicant had been complaining of numbness together with paraesthesia in his right hand. A nerve conduction study test done showed no electrophysiological evidence to suggest any nerve compression. In his most recent report of the 17th June 1983 (Exhibit A) he said he had been reviewing him at periodic intervals and had last seen him on the 27th May 1983. He was of the opinion that Mr. Meath suffers from genuine disability consisting of persistent low back pain and that he would not be able to perform any form of manual work.

16. Dr. Seaton, who described his specialised field as reconstructive surgery in accident and orthopaedic cases, holds a position as a consultant with the rehabilitation centre at Mt. Wilga where he met the applicant, Mr. Meath. He described the applicant's condition as a chronic back complaint which he felt was probably originally caused by various accidents and the nature and conditions of his work as a butcher and it was a generalised wearing of the spine specifically at the L2/3 level, that is the 2nd lumbar disc but also involving all the other lumbar discs. He did a myelogram on the applicant on the 15th November 1982. Dr. Seaton gave evidence that the myelogram showed that the applicant

"had, as always already known, a narrow and
degenerative L2/3 discs, osteophytes, that is
to say encroachment on the nerve roots in the
intervertebral foramina and it showed that all
the other discs were bulging in, pressing the
column of myodil, metricimide myodil to show
that they were in fact abnormal but not
sufficient to need surgery."

17. He said this condition causes backache. He was of the opinion the applicant is not fit to work as a butcher and cannot do heavy lifting or bending or work over a bench for a long period of time. He did not think the applicant could stand for a long period of time. When asked about the possibility of surgery, Dr. Seaton said the applicant did have pain in the groin which is thought to be coming from entrappment of the nerve root at L2/3 but it was thought that surgery at this high level was precarious and could further cripple him. He also expressed the opinion that it would not get him back to work. He said the chances of success of rehabilitation with Mr. Meath were hopeless. He was then asked:

"I think that you have spoken to him. Could
you just, from you own observations, tell the
Court his degree of intelligence?---Well, he
is not stupid but he is not educated. He
comes from a battling area and a battling
family. He is inadequate in normal
environmental conditions in the city. He is
alright in the bush but he could not handle a
job in Macquarie Street as stockbroker's
clerk."

18. Although he had seen the applicant as a consultant in surgery, nevertheless he had seen the reports of all the people who had been into his case at Mt. Wilga including the psychologist, the rehabilitation medical officers, the back group doctors which showed that they had tried everything they could and it did not work out on the two occasions he had been there. Although Dr. Seaton agreed he had observed from the rehabilitation file (T 23) that it was actually the Department who had recommended the applicant be placed on a pension in the original instant, the fact was an invalid pension had been granted to Mr. Meath prior to his first attendance at Mt. Wilga. The truth of the matter was, however, that on his discharge from the centre, the rehabilitation medical consultant had recommended that he remain on the invalid pension. This however does not detract from Dr. Seaton's answer that "it was thought the applicant was inadequate for retraining in a light sedentary type of job performance". In cross-examination, Dr. Seaton said he as aware of the view expressed by Dr. Zamill, a back group expert and a rehabilitation medical officer at Mt. Wilga, that the applicant had a large psycho-neurotic overlay as a component of his back condition. He said in the applicant's case this was an indication of an anxiety. He said the applicant's depression and neurotic overlay was the result of his not being able to work and his feeling of inadequacy.

19. Dr. Hedberg in his report of 5th May 1982, stated the applicant's symptoms were diffuse and did not necessarily involve any local orthopaedic disturbance. He thought there was a significant degree of overlay. Giving full weight to his symptoms, he put the orthopaedic disability of the order of 30%. In his oral evidence he said that having regard to the applicant's spondylosis he would regard him as being unfit for duties requiring heavy lifting or frequent bending. Dr. Hedberg did not have the benefit of seeing the report of the myelogram done under Dr. Seaton in November 1982. He would not be prepared to certify the applicant fit to do the work of butchering. Dr. Hedberg explained that he had based his assessment on the known degenerative change in his back and because he had had symptoms since 1976. In his view, as there was no clinical evidence of nerve root involvement, even if there was a disc protrusion,it was not playing a relevant part in the story. The Tribunal asked Dr. Hedberg whether it might be expected that after some six or seven years that there would be some overlay and he responded as follows:

"Overlay is, again, a difficult thing to
define.

Just as, I think, anybody that has persistent
pain for months or even for years undoubtedly
gets into a pattern which makes it harder for
them to cope with things as they are, and one
commonly finds that long after the actual
cause effect has been removed, the symptoms
may well persist, and I think this undoubtedly
occurs in most of us, and carries on, and I
think that it is one fact in the assessment of
these things that if you have had pain and you
have been off work for six years, then you
have got a disability whatever has happened in
the past."

20. Dr. Hedberg agreed that on the assumption that the applicant had cooperated in all programs in which he was engaged at Royal South Sydney Hospital and at Mt. Wilga, that that would be an indication that the particular person was endeavouring to overcome some of these difficulties that may have arisen particularly as a result of the long period of time that has elapsed.

21. Dr. Ehrlich saw the applicant on the 13th October 1983. He noted on clinical examination inconsistencies in lumbar flexion, straight leg raising, limb elevation with knee flexion, and his ability to sit upright on the examination couch with straight knees. Lower limb reflexes were brisk and equal and sensory testing revealed no abnormality. He expressed the view that it would be reasonable to regard the claimant as having some work limitations if for no other reason than because of the past lumbar disc prolapse which is assumed to have taken place. He said it should, however, be pointed out that the non-organic features are by far the most predominant in that his "limitation" of movement was quite extraordinarily severe for one with an eight year's course, particularly as it affected lateral tilting of the spine which normally can be carried out even by people with very severe discogenic pain. He commented his straight leg raising tests were quite paradoxical and in view of all this it was very difficult to accept that he could not at least do light work. However because of his education limitations, his employment opportunities must be regarded as very limited and noted that two attempts at rehabilitation over four weeks and subsequently eight weeks at Mt. Wilga had so far not resulted in finding him a job. He concluded by saying that in the current economic climate he may well remain unemployed for very lengthy periods but his locomotary problems should only be regarded as disabling him to, say, a very generous estimate of 35%. Having been taken to the X-ray reports in T12 of the 26th November 1976, and T22 of the 20th October 1982, Dr. Ehrlich said they threw further doubt on the assumption that he had made that the applicant had had a disc prolapse and that there was even less explanation for his apparent limitations of movement. He said they were not due to mechanical barriers to movement. However, he thought in view of the X-ray reports referring to degenerate spine changes, and the fact that he was not a particularly robust or powerfully built person, the applicant should be regarded as probably wisest to avoid situations where he has to do heavy work; he probably should not do things like heavy lifting or bending and/or anything very strenuous but apart from that he should be capable of most jobs that people in the mid-40's with a bit of spondylolysis can do. He did not impress him as being a powerful, robust, physically very fit person. Dr. Ehrlich said in an endeavour to compare his ability with that of a completely fit, physically able man, an ordinary fit manual worker, that he would say the applicant would only be 2/3's as good as such a person. But added that the degree of disability could have different consequences for different tasks undertaken. He amplified this by saying:

"If it came to loading refrigerators or
digging trenches or felling timber, he may be
quite unable to do that. But if it came to
answering telephones and doing messages, he
would be exactly as able to do it as a 100%
person, his degree of difficulty would have
different consequences depending upon tasks
attempted."

He thought the applicant would be able to deliver or cart groseries up to 5 to 10 kilograms. Dr. Ehrlich did not accept the applicant's complaints. He thought the applicant could work as a butcher in a chicken shop.

22. Mrs. Meath gave evidence that prior to her husband's accident he had been a very active person playing foot ball and tennis, mowed the lawns and did all the work around the house. She said now he could not do any heavy work. He would still have a try at mowing the lawns but there was no way he could do a whole lawn in one day and that he would come in and lie down because he is very crook after doing it. He is not able to drive a car for any distance. He is not able to stand very long. Some days he is better than other days. She had noticed changes in his moods since the accident. She had been with her husband on a number of occasions when a friend in the butchery trade had asked if he wanted a job but that once they heard his story they were not interested as they could not take the risk of employing him. The applicant cannot sit down and put a letter together. He could not be a car saleman because he would not be able to fill in the papers. He cannot take a phone message because he cannot write it down correctly. Before the settlement of his Workers' Compensation Claim her husband had gone back to Woolworths and asked for light duties. Before this he had told her he felt he could do light duties work. It was not possible for him to go back to Woolworths because he had signed a document at the time of settling his Workers' Compensation Claim in March 1977.

23. The applicant's brother saw his brother just about every week except for four years when he was away in the country. He confirmed Mrs. Meath's evidence that the applicant was a very active young man and a very hard worker. He used to start early hours in the morning and work through to whatever time was required at night. He also confirmed that he played in active sports. He said there had been a marked change in his physical fitness since his accident. His participation in social activities was very limited. He observed he had trouble standing and sitting for long periods. He recalled one occasion when he drove the applicant from his home at Baulkham Hills to the city and they had to stop three times on the way for him to get out and walk around because he had continual cramps. He does not seem to have the same outlook on things since the accident. He becomes depressed or appears to become depressed and he does not relate to things as well as he used to. He had seen him extremely moody and irritable where there should be no irritation involved in what he was talking about. He was present on one occasion when his brother tried to mow the lawn and he had to take him off the lawnmower because there was no way he could do it. He was tripping over everything just trying to push the lawnmower, so he could have finished up damaging himself or somebody else.

24. Apart from the two days in January 1976 the applicant has not worked since his first accident on the 19 June 1975. He had tried a few butchers he knew to see if he could a job making sausages which would not involve his back but they had all refused him telling him he was too much of an insurance risk. He also spoke to other butchers previously not known to him but when he mentioned he had not worked for eight years and told them he had a bad back they did not want any thing to do with him. In the last six months he had made 20 or 30 phone enquiries about jobs. He said if he could find a suitable job he would go back to work. He did not think he could handle the butchery business again. He had applied for other type of jobs both whilst he was on the invalid pension and more recently since his pension had been cancelled. The type of job he had applied for was a delivery job at a supermarket but apparently without success. He claimed he was not able to drive his car for long distances. What he had in mind was his wife would drive the vehicle and he would do the delivery. In cross-examination he said if he was offered a job as a delivery man providing there was no driving in it he would take the job. He was willing to do work other than as a butcher. He had not sought clerical work because he could not do it. He said he could do the job of a caretaker providing there were no steps and things like that involved. He said he had made enquiries about getting a job as a gatekeeper with a number of security companies but they would not touch him because they reckoned he was a risk with a bad back. He expressed his exasperation with the position over the last eight and a half years saying he gets frustrated and that he would like to get out and work instead of sitting around at home. It was then put to him:

"If Jim's Butchery offered you a job this
afternoon you would regard that as a suitable
job from your point of view would you
not?---If I could get it.

The only limitation is whether Jim would offer
it to you or not; is not that right: Yes or
No?---Yes."

Finally the applicant was cross-examined about a statement which he had made when he was attending Mt. Wilga Rehabilitation Centre for the second time in October 1982. This statement appeared on one of the documents in his rehabilitation file (T 23, page 52). The document is headed Mt. Wilga Rehabilitation Centre Assessment Unit - Initial Physical Assessment. Dr. Seaton's name appears at the top of the document but apart from this there is no indication who carried out the physical assessment of the applicant. The document is unsigned. It contains his presenting physical problems, namely neck/low back pain, pain in right leg and headaches. It shows under the heading of Level of Functional Ability/Disability - cannot run, play sport. The next heading is Overall Level of Physical Fitness and it is here that the statement appears namely:

"Rates fitness level as 65%. Says he is much
fitter now than when he attended Mt. Wilga in
1979."

The applicant conceded that he might have told the people at the Rehabilitation Centre that he was feeling much fitter in 1982 than when he attended Mt. Wilga in 1979 adding that he did feel fitter and that they proved him wrong at the time he was there but that when he finished at Mt. Wilga he was not. Initially he would not agree that he had told the people at Mt. Wilga in 1982 that he rated his fitness level at about 65% and when asked to clarify his answer he said he did not remember saying that because he was in a hurry that day. Finally when pressed he said he would not disagree with that proposition because he thought the cross-examiner had it in black and white in front of him. He agreed he had managed to do carpentary work at Mt. Wilga in 1979 and in 1982. He said he had not felt capable of doing it but he was told to do it and that was part of the course. He agreed he knew he had been assessed by the people who had observed him at Mt. Wilga in 1979 as having the capacity to do that work and finally he agreed that in his own terms he was much fitter than that when he went back there in 1982.

25. The applicant said he takes Nembudine and digesic for his back pain and panadol for his headaches. He also takes two mogodon at night to help him sleep. He also had injections of analgesics for his pain when it was worse in the cooler weather. Mr. McGovern of counsel for the respondent asked Dr. Vaz, his general practitioner, about the injections he had given the applicant and Dr. Vaz said he had given him a fortral injection after he had the myelogram and he was in severe pain. Dr. Vaz said as far as he could recall his pain consequent upon the myelogram was the most severe pain the applicant had ever complained to him about.

26. Mr. Meath was also cross-examined about the use of a caravan by his family and himself which his wife had purchased in or about 1977. The applicant had received a sum of something less than $4,000.00 from his father's estate which he had given to his wife who had used the moneys to purchase the caravan. Mrs. Meath said she bought it hoping that it would enable the family to relax. I do not think anything said or done by the applicant and his wife in this regard adversely affects the applicant's credit. He was also cross-examined about various activities with St. John's ambulance and the Police Citizen's Boys Club but again I do not think his credit was adversely affected arising out of any of those matters.

27. The applicant lives now with his wife and their youngest child in a housing commission home at Laylor Park. They had moved from the home at Mr. Druit where they had been living at the time of his accident in 1975, to be closer to the Blacktown Hospital where he received treatment from time to time.

28. Turning once more to the "T" documents it was noted on the applicant's initial claim for invalid pension made on the 20 May 1977 (T 3) that his condition had remained stationary over the previous twelve months. Likewise on his medical review on the 20 July 1978 (T 8) it was noted his condition had remained stationary in the previous twelve months. The report by Dr. Zamil on the 3 April 1979 certified that in his opinion the applicant was permanently incapacitated for work and recommended review in two years time and the vocational counsellor recommended continuation of the pension. Again on review on the 28th May 1981 (T 13) it was noted by the Commonwealth Medical Officer that his condition had remained stationary during the last twelve months.

29. This case is different from many others that come before the Tribunal in that there was no psychiatric evidence called in the applicant's case. I have already referred to the comments made by Dr Zamil on the 29th March 1979 on his discharge from Mt. Wilga on the first occasion that although the applicant does suffer from some lumbar disc compression, the extent of the pain response exhibited appears to be related to a large psycho-neurotic overlay. At the time of his discharge from Mt. Wilga on the 29th March 1979 he was on triptynol therapy to relieve his anxiety and depression. So to that extent there is some evidence before the Tribunal about the applicant's psychological state but, in any event, upon the view which I take of the facts I do not think the applicant's appeal should fail because no psychiatric evidence was called on his behalf.

30. I am persuaded on the balance of probabilities that the applcant does have a serious back disability and I s find.

31. The preponderance of the medical evidenc is supportive of the view that the applicant should not return to work as a butcher bcause of the lifting and bending involved. All medical experts apart from Dr. Bloch were of the view that the applicant should not undertake heavy lifting or bending. I do not think there would be many jobs for butchers along the lines suggested by the Dr. Ehrlich. I accept the view of Dr. Seaton that it is not likely that the applicant will ever do manual work again. The applicant's declaration of his feeling better in 1982 than in 1979 and rating himself at a fitness level of 65% does not enable the Tribunal to come to a view that the applicant was able to perform the duties of a butcher or any other job requiring lifting or bending. The applicant said he had looked for a job as a sausage maker in a butcher's shop. On the evidence this job would involve a certain amount of lifting and bending but in any event he was unable to get such a job because of his being a bad insurance risk to a potential employer. Likewise, his concession, if it may properly be called that, that if Jim's Butchery offered him a job that afternoon he would regard that as a suitable job from his point of view if he could get it, does not enable the Tribunal to conclude that he would be able to do such a job. He was asked in re-examination by his own Counsel about this answer and he said he did not think his physical capacity would allow him to perform that job because he would "be standing up too much and scratching and bending around". Moreover to undertake such a job would be to go against medical opinion. I accept that he has no capacity which would enable him to undertake clerical duties and having regard to his record at both the Royal South Sydney Rehabilitation Centre and at Mt. Wilga, I am not persuaded that he has any skills or talents which would warrant perseverance with his re-training with a view to his obtaining work in a different field. It follows that in my view the applicant does not have the capacity to engage in the type of work in which he was trained and in which he worked for some 20 odd years, and that the physical impairment to the applicant's back also precludes him from working in any type of employment involving heavy lifting and bending and I so find. It is also my view that his physical impairment would preclude him from undertaking the alternative types of work suggested by the respondent Counsel and I so find. Again, perhaps more importantly, he has been unable to obtain work performing the duties involved in such types of work because of his being a bad risk with his back.

32. In my view having regard to my findings with respect to his physical disability and the resultant impairment to his physical capacity for work, his lack of skills, training and experience (apart from butchering) the lack of success to date in his rehabilitation and retraining and the lack of prospects in that regard, his long period out of the work force, the insurance risk he presents to any future employer, and his pension and sickness benefit history, the applicant is unlikely to attract an employer on a remunerative basis and I so find. In the result I find that the applicant is incapacitated for work to a degree not less than 85%. In the light of all the evidence in my view it is more likely than not that his incapacity for work will persist in the foreseeable future (Cf Re Panke and the Director-General of Social Services (1981) 4ALD179; and McDonald v The Director-General of Social Security Full Federal Court, 27th March 1984). I find therefore that his condition is permanent for the purpose of Ss 23 and 24 of the Act.

33. In the result, I set aside the decision of the Director-General to cancel the applicant's invalid pension on the 20th January 1983. I therefore set aside that decision and to remit the matter to the respondent with the direction that the invalid pension be restored to the applicant as and from the date of the cancellation. As the applicant has been in receipt of sickness benefit, I reserve liberty to apply in the event that there is any difficulty in relation to the calculation of the applicant's entitlements.