Lapham and Saville and Department of Family and Community Services [1999] AATA 499 (8 July 1999)

Last Updated: 20 July 1999

DECISION AND REASONS FOR DECISION [1999] AATA 499

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/314

General Administrative DIVISION )

Re BRIAN LAPHAM AND LYNETTE SAVILLE

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal R P Handley, Senior Member

Date 8 July 1999

Place Sydney

Decision The Tribunal affirms the decision under review.

(Sgd) R P Handley

..............................................

Senior Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - injury to lumbo-sacral and cervical spine - qualification - whether the applicant has an impairment of 20% or more under the impairment tables - whether the applicant has a continuing inability to work - whether applicant's partner is qualified for wife pension

Social Security Act 1991 - ss 94, 94(1)(a), 94(1)(b), 94(2), 147

REASONS FOR DECISION

8 July 1999 R P Handley, Senior Member

1. This matter involves applications by Brian Lapham and Lynette Saville for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 19 February 1998. The SSAT affirmed two decisions of a delegate of the Secretary of the Department of Social Security, now the Department of Family and Community Services ("the Department"), and an authorised review officer, to cancel payment of disability support pension ("DSP") to Mr Lapham and to cancel payment of wife pension to Ms Saville.

2. At the hearing, Mr Lapham represented himself and Ms Saville, and the Department was represented by Bernard Slattery of Centrelink. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with two further medical reports submitted by Mr Lapham. Mr Lapham gave oral evidence at the hearing which was conducted in Coffs Harbour.

Background

3. Mr Lapham, who is aged 47, was injured in September 1988 while working as a rigger for Carlton and United Breweries in Sydney. He was retrenched on medical grounds on 24 April 1990 and has not worked since. He was granted DSP in December 1992. In August 1994, Mr Lapham received a compensation settlement of $49,800 and was precluded from receiving DSP from 6 August 1994 to 14 January 1995, when DSP was regranted.

4. In 1997, the Department conducted a review of Mr Lapham's DSP. On 10 April 1997, an Australian Government Health Service ("AGHS") Medical Officer, Dr Doron Arad, assessed Mr Lapham's level of permanent impairment at 15 per cent: 10 per cent in respect of low back pain, and 5 per cent in respect of neck pain. Dr Arad found Mr Lapham to be fit for suitable light duties and said Mr Lapham would benefit from suitable retraining. On 7 August 1997, the Department decided to cancel payment of both DSP to Mr Lapham, and wife pension to Ms Saville.

5. These decisions were affirmed on 21 November 1997 by an authorised review officer and on 19 February 1998 by the SSAT. On 24 March 1998, Mr Lapham and Ms Saville lodged an application for review by the Tribunal.

Applicable Legislation

6. The qualifications for DSP are set out in s 94(1) of the Social Security Act 1991 ("the Act"). Section 94(1) provides in part:

94(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;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; ...

7. The term "continuing inability to work" is explained in s 94(2) and (3):

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 2 years; and

(b) either:

(i) 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

(ii) 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 an impairment, the Secretary is not to have regard to:

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

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

8. The terms "educational or vocational training", "on the job training" and "work" are defined in s 94(5):

94(5) In this section:

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

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

9. Section 147(1) provides:

147(1) A woman is qualified for a wife pension if the woman:

(a) is a member of a couple; and

(b) has a partner who:

(i) is receiving an age pension, disability support pension or disability wage supplement; or

(ii) is receiving a rehabilitation allowance and was, immediately before he became qualified for that allowance, receiving an invalid pension.

Mr Lapham's Case

10. Mr Lapham complained about the perfunctory medical examination by the AGHS medical officer, Dr Arad. Dr Arad had only lifted one of Mr Lapham's legs, and the x-rays and CT scans that Dr Arad relied on were several years old. Mr Lapham submitted two further medical reports, that of Dr T M Fiay dated 18 June 1999 and that of Dr Raymond Jones dated 14 August 1998.

11. Mr Lapham said he had constant pain in his neck and lower back which is sometimes severe. He also has pain in his right hip. Sometimes the hip is OK but it seems to be worse in cold weather. His neck pain is the worst because this also affects his shoulder and right arm. On a good day, Mr Lapham can "get about alright". He feels rotten first thing in the morning but feels better after loosening up by stretching and moving around. After breakfast, he will often wash up and do a bit of sweeping. His wife does the vacuuming because this would require him to lean forward. It is leaning forward that causes him the most difficulty. For example, on one occasion he used a whipper snipper which put him in bed on his back for two and a half weeks. Similarly, when Mr Lapham is pottering in his garden, he avoids leaning. A few months ago, he leaned forward to prune a tree and felt severe back pain.

12. Mr Lapham and Ms Saville have an 18 acre property, 23 kilometres from Grafton. There are some established citrus trees on the property, presently a bit overgrown because Mr Lapham is unable to look after them. Mr Lapham grows vegetables in pots and on the tray of an old three ton table top truck so that he does not need to dig and bend.

13. Mr Lapham said he reads a lot, sitting in a normal lounge chair which he finds difficult to get out of because of his right hip. He can sit in the lounge chair for a couple of hours. He does not watch much television and only goes to the club a couple of times a year. His wife does the shopping. Mr Lapham said he spends most of the time at home and does not do a lot.

14. Mr Lapham said that before the accident, he would use the gym at work and enjoyed being fit. As a rigger, he was required to undertake heavy work. He cannot undertake any heavy work now, although he wishes he could. He does not go swimming but can walk for about 30 minutes, after which he would be feeling a bit sore in his lower back.

15. Mr Lapham said the medical evidence confirms that his health is gradually deteriorating. He has a degenerative condition in the back and also osteoarthritis. The last time Mr Lapham had a bad day was when he was pruning a couple of months ago. He collapsed on the ground. In such a situation, when he has severe pain, he has a remedial massage. On that occasion, it took about a week for him to get back to his usual state.

16. Mr Lapham used to have remedial massage once a week or once a fortnight, but has not had this recently because he has not had enough money. Apart from massage, he does not have any regular medical treatment. At one time, Mr Lapham took anti-inflammatory medication but this gave him stomach problems and he stopped. However, he finds smoking cannabis beneficial because this relaxes him.

17. Mr Lapham travelled to the hearing in Coffs Harbour by motorbike which took him about an hour. He found this OK. He does have a car but it is unregistered and he is therefore not using it at present.

18. Mr Lapham said he is currently receiving newstart allowance but, having submitted a three month medical certificate from his doctor, is not required to look for work. He has not looked for work since moving from Sydney about five years ago. He acknowledged that he might be able to perform light work for 30 hours a week if a suitable job was available. However, he believes nobody would employ him because he is sometimes out of action for several weeks at a time with severe pain. After recovering from his accident, he continued working for Carlton United Breweries on light duties for about six months, for example counting fire hydrants, before being retrenched, on medical grounds, because such work was no longer available.

The Department's Case

19. Mr Slattery said the Department relied on Dr Arad's report because it was consistent with previous AGHS medical assessments, for example, that of Dr J Ambrose on 10 December 1992 (T21). While Dr Ambrose assessed Mr Lapham's impairment at 20 per cent and found he was unfit to return to his former occupation as a rigger, he said Mr Lapham

could perform a light duties job that did not involve rapid repeated neck or upper limb movements, bending or twisting, and walking long distances or standing for extended periods.

20. Mr Slattery said that in December 1992, the original decision-maker seemed to give more weight to Mr Lapham's treating doctor without addressing Dr Ambrose's opinion. However, the decision-maker noted that Mr Lapham should be reviewed in one year. This did not happen, and Mr Lapham's qualification for DSP was not reviewed until 1997.

21. Mr Slattery noted that Mr Lapham's treating doctor, Dr M J Jude, said in a report in February 1995 (T35) that Mr Lapham could "possibly" do "light duties not involving long periods of sitting" for 30 hours a week.

22. Mr Slattery submitted that Mr Lapham does have a capacity to perform light work for at least 30 hours a week or to undertake retraining to enable him to work within the next two years. Mr Slattery said the availability of suitable work for Mr Lapham is not relevant, in accordance with ss 94(3) and (4) of the Act, because Mr Lapham has not turned 55.

Consideration of Law and Findings

23. The issues for the Tribunal to decide are, first, whether the Applicant's physical impairments should be assessed at 20 per cent or more under the Impairment Tables set out in Schedule 1B of the Act and, if so, second, whether the Applicant has a continuing inability to work. The Tribunal notes that the Tables for the assessment of work-related impairment for DSP, set out in Schedule 1B, were revised in 1997 and that the new Tables have been in use since 1 April 1998. The Tables used to assess the Applicant's impairment for the purpose of the decision under review were the old, pre 1 April 1998, Tables.

24. In his report dated 10 April 1997 (T37), the AGHS doctor, Dr Arad, assessed Mr Lapham's lower back pain at 10 per cent under Table 5.2, and his neck pain at 5 per cent under Table 5.1, based on a finding of a loss of one quarter of the normal range of movement in respect of each. The Tribunal notes that, in 1992, the AGHS doctor, Dr Ambrose, found a minor restriction in the normal range of movement of Mr Lapham's lumbo-sacral spine and a full range of movement in Mr Lapham's cervical spine (T21). In respect of Mr Lapham's spine, Dr Ambrose made an impairment assessment of 10 per cent under Table 6 for chronic pain.

25. The Tribunal had regard to Dr Fiay's report of 18 June 1999 in which he recorded a reduced range of movement in Mr Lapham's neck and lumbar spine, and also to Mr Lapham's oral evidence. Mr Lapham's oral evidence is that leaning forward, for example to prune a tree or to use a whipper snipper or vacuum cleaner, causes severe pain which can require bed rest for a week or more.

26. In the Tribunal's view, the impairment assessment of Mr Lapham's cervical and lumbar spine may have been underrated by Dr Arad. In particular, the Tribunal considers the assessment of Mr Lapham's cervical spine, which Mr Lapham described as his "worst problem", should be 10 per cent under Table 5.1. The loss of range of movement of Mr Lapham's cervical spine appears to be more akin to a loss of half rather than one quarter of his normal range of movement. Thus, assuming an impairment assessment of at least 10 per cent in respect of Mr Lapham's lumbar spine. Mr Lapham meets the 20 per cent threshold for DSP under s 94(1)(b) of the Act. The Tribunal notes that had Mr Lapham's cervical and lumbar spine been assessed under the revised impairment Tables, in use since 1 April 1998, an assessment of 10 per cent in each case would be reasonable.

27. The second issue for the Tribunal to decide is whether Mr Lapham has a continuing inability to work, as required by s 94(1)(c)(i). Section 94(2) explains that the person's impairment must, of itself, prevent the person from doing any "work" - defined as 30 hours a week at award wages - within the next two years, and, either prevent the person from undertaking training within the next two years or, if the impairment does not prevent the person from undertaking training, such training is unlikely (because of the impairment) to enable the person to do any work within the next two years.

28. The Tribunal finds Mr Lapham's ability to undertake light work is essentially untested. He was retrenched on medical grounds in 1990 because light work was no longer available. He has not looked for work since moving to his home near Grafton about five years ago. Indeed, he received a DSP until August 1997. Mr Lapham acknowledged that he might be able to perform light work for 30 hours a week if suitable work was available. However, he contended that nobody would employ him because he is sometimes out of action for several weeks at a time because of severe pain.

29. The Tribunal notes Dr Arad's opinion (T37) that Mr Lapham is

suitable for light duties... as long as he is not required to bend, lift more than 5kg and stay in the same position for more than 15 minutes.

30. The Tribunal also notes the opinion of Mr Lapham's treating doctor, Dr Jude, in February 1995, that Mr Lapham could possibly perform suitable light duties not involving long periods of sitting (T35). However, in September 1997, treating doctor Dr W F C Cayzer (T40), considered that while Mr Lapham could do part-time sedentary work for at least eight hours a week, he could not return to full-time work of at least 30 hours a week.

31. The most recent report of a treating doctor, that of Dr Fiay, notes that Mr Lapham would be unable to perform his pre-injury duties as a labourer. With regard to lighter duties, Dr Fiay says:

If he gets retrained for light work, as in office work, he can manage no more than 20 hours per week, working 4 hours per day for 5 days per week. This is because sitting, writing or operating computer keyboards will lead to pain in his neck and his lower back.

32. As Mr Slattery submitted, pursuant to s 94(3), the availability of suitable training or work is not to be taken into consideration. The Tribunal must decide whether Mr Lapham has a continuing inability to work, as explained in the Act, solely on his "ability" to work. In the Tribunal's opinion, it was reasonable for the departmental decision-maker to conclude, in August 1997, that Mr Lapham was not qualified for DSP. The evidence then available to the decision-maker indicated, on the balance of probabilities, that Mr Lapham was able to undertake suitable light work for 30 hours a week. Thus, in the Tribunal's view, the SSAT decision was correct and should be affirmed.

33. Because Mr Lapham was not qualified for DSP, it follows that, pursuant to s 147(1)(b)(i), Ms Saville was not qualified for wife pension, and the decision to cancel her pension was therefore correct.

34. However, the Tribunal notes that, over two years after the original decision, with the benefit of additional medical evidence, the picture is not so clear with respect to Mr Lapham's ability to work or retrain. Mr Lapham may wish to retest his eligibility by lodging a new claim for DSP. Any future decision-maker would probably be assisted by a vocational assessment from a suitably qualified person.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of R P Handley, Senior Member

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

Associate

Date of Hearing 21 June 1999

Date of Decision 8 July 1999

Unrepresented Applicant Brian Lapham

Advocate for the Respondent Bernard Slattery - Centrelink