Katsikavelas and Secretary, Department of Family and Community Services [2000] AATA 57 (3 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 57

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1185

GENERAL ADMINISTRATIVE DIVISION )

Re FOTIOS KATSIKAVELAS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 3 February 2000

Place Sydney

Decision The decision under review is affirmed.

(Sgd) M D ALLEN

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

Senior Member

CATCHWORDS

SOCIAL SECURITY - Applicant's Disability Support Pension cancelled. Whether he had an impairment equating to 20 points or more on the Impairment Tables and, if so, whether there was a continuing inability to work. No evidence impairment reached 20 points on Impairment Tables.

Social Security Act 1991 - s94

REASONS FOR DECISION

3 February 2000 Senior Member M D Allen

1. In this matter the Applicant lodged with the Tribunal on 6 August 1999 a request to review a decision of a Social Security Appeals Tribunal (SSAT) made 24 June 1999. At the request of the Applicant and the concurrence of the Respondent, this matter was dealt with by the Tribunal "on the papers".

2. The material before the Tribunal was the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and a submission by the Respondent. The Respondent's submission contained a report from the Applicant's treating general practitioner, Dr Woollard, dated 21 October 1999. No material was received from the Applicant.

3. On 24 June 1999 an SSAT (by a majority) affirmed a decision by a delegate of Centrelink on 2 February 1999 to cancel the Applicant's Disability Support Pension (dsp).

4. The criteria for the grant of a DSP are set in section 94 of the Social Security Act 1991 (as amended) and read inter alia:

"(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; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) ...

(iii) ...

(2) A person has a 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."

5. In subsection 94(5) "work" is defined to mean work that is for at least 30 hours per week at award wages and that exists in Australia, even if not within the person's locally accessible labour market.

6. Various medical reports were before the SSAT and the majority of that Tribunal found that the impairment suffered by the Applicant on the tables, which are at Schedule 1B to the Social Security Act 1991, was nil. A report by a Dr Greace, who is the Regional Medical Adviser to Health Services Australia, dated 25 January 1999 is at Document T14 and he assesses the Applicant's percentage of impairment as nil.

7. There was no new material placed before me which in any way casts doubt upon this assessment.

8. The report by Dr Woollard does not attempt to attribute a degree of impairment in accordance with the Social Security Act 1991 Tables as that doctor was not familiar with them. His report does read inter alia:

"2. All the current medical conditions suffered by the customer:

Atypical chest pain as above

Asthma: he has a history of asthma and was on Flixotide for its control at some stage although I note that over the past two years we have not had one consultation in relation to the asthma.

Inguinal hernia: on right side and been booked to have this repaired but has failed to have that dealt with as yet.

Pain in shoulders and knees: the first I heard of this was on 7^th October 1999 when he told me he had a pain in his left shoulder in the cold weather only and pain in his knees in the cold weather only. X-rays were performed of his knees which were basically normal and there was no really significant abnormality in his left shoulder. As far as I know these are reasonably controlled with his pain relief and as I said he had never complained about them before the 7^th October 1999.

...

5. Opinion as regard to work the customer could do etc.

He is 56 with a history of carcinoma of the lung, coronary artery bypass grafts and a hernia. I am not sure when he last worked but I think it is some year (sic) ago. He would not be a remarkedly exciting candidate to re-enter the workforce at this stage. However as long as he was not a danger himself by taking MS Contin I cannot see any reason why he could not work 30 hours a week at some form of work within the next two years.

6. My opinion as to what types of work the customer could do. My reasons

I have not taken an employment history on Mr Katsikavelas. Certainly light sedentary work should be within his capacities."

9. Whereas I have no doubt that the Applicant was temporarily unfit for work whilst he was recuperating from surgery for lung cancer, there is no material before me which would suggest he is permanently incapacitated for work. In any event, there is not a scintilla of evidence that suggests that the Applicant's degree of impairment equates to 20% on the Impairment Tables. Consequently he does not even meet the first criteria for the grant of a Disability Support Pension, namely that his impairment is of 20 points or more under the Impairment Tables. The report from Dr Woollard makes it clear also that he does not have a continuing inability to work because of impairment.

10. The decision of the Social Security Appeals Tribunal is therefore affirmed.

I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed: Ivanka Mamic .....................................................................................

Associate

Date of Hearing 1 February 2000

Date of Decision 3 February 2000

This matter was dealt with "on the papers".