Skepper and Secretary, Department of Family and Community Services [2002] AATA 1159 (12 November 2002)

Last Updated: 12 November 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1159

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/529

GENERAL ADMINISTRATIVE DIVISION )

Re WILLIAM SKEPPER

Applicant

And SECRETARY, DEPARTMENT OF FAMILY and COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date 12 November 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd)......................

R G Kenny

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether applicant has impairment rating of 20 points or more - relevant time-frame - whether applicant has continuing inability to work

Social Security Act 1991 ss 94 (1), 100 and schedule 1B

REASONS FOR DECISION

12 November 2002 Mr R G Kenny, Member

The Application

1. William Skepper (the applicant) was in receipt of disability support pension from 1999 until it was cancelled in January 2002. He lodged a further claim for disability support pension on 22 February 2002. On 12 March 2002, a delegate of Centrelink on behalf of the Department of Family and Community Services (the respondent) rejected that claim. That decision was affirmed by an authorised review officer on 3 April 2002 and, in turn, by the Social Security Appeals Tribunal on 22 May 2002. On 18 June 2002, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal).

2. The applicant attended the hearing but was not represented. The respondent was represented by Mr S Letch. In evidence was a set of T documents (T1 - T19) compiled by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 as well as the following:

* exhibit 1 - a medical report, dated 29 July 2002, from the applicant's treating doctor, Dr A Powell;

* exhibit 2 - a further medical report, dated 21 August 2002, from Dr A Powell; and

* exhibit 3 - a medical report, dated 10 October 2002, from Dr T McGrath of Health Services Australia.

Issues and Legislation

3. Disability support pension is paid in accordance with the terms of the Social Security Act 1991 (the Act) and the qualifying criteria are set out in section 94 of the Act. The provision reads:

"94. Qualification for disability support pension

(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) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

(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 form 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.

Note: For work see subsection (5).

(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.

(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

(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."

4. In accordance with that provision in so far as it is relevant to the hearing, the Tribunal must determine:

* whether the applicant has a physical, intellectual or psychiatric impairment; and, if so

* whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) thereof; and, if so

* whether he has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.

5. To qualify for a disability support pension, all three of these requirements must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of three months starting immediately after the day on which his claim was lodged as provided for in section 100 of the Act which relevantly reads:

"100. Early claim

(3) If:

(a) a person lodges a claim for a disability support pension; and

(b) the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and

(c) the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;

the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."

6. The Instructions to Schedule 1B preclude the allocation of a rating for a condition that is not investigated, stabilised and treated. That is set out in paragraph 4 thereof which reads:

"4. 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. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular, where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged."

Applicant's Case

7. The applicant set out his case in the following way.

8. He is a roof tiler by trade and injured himself in a fall from a roof in 1992. He did not work for years until he tried real estate selling for about three months in 1998. He experiences pain in his back, knees, hips and shoulders to a level that precludes him from working but, nonetheless, whilst on the disability support pension in September 2001, he decided to take up work with the Caboolture City Council. The position involved him in concreting work, in particular the finishing of kerbing and channelling fittings. He worked for nine days per fortnight and each day was of eight hours duration from 6 am. He ceased work on 21 February 2002 because there was a developing shortage of jobs and, as a casual employee, he was one of the first to have his position terminated. He had discussed cessation with his parents with whom he lives and who were concerned about the fact that he was losing weight.

9. During the five months of his work with the Council, he continued to have problems with his various joints but did not tell his employer about them. He had "maybe 2 days" off sick and went home early "maybe 6 times" when he wasn't feeling well. When he did this, he would make up some excuse rather than declare to his supervisor that he was not well.

10. He lives on a block of 2/3 of an acre some four kilometres from Caboolture with his parents, who are in their 80s and who have their own health concerns. He does some of the chores around the house including some mowing on a ride-on mower but this is mainly looked after by his son. He is able to drive his car but has problems with back pain after about 40 kilometres or half an hour and needs to stop for a rest. He agreed that he had told the Social Security Appeals Tribunal that he could walk for a kilometre but said that he would now need to take rests in the distance. He also agreed that he had told the Social Security Appeals Tribunal that he visited the local bowling club twice each week with a female friend but said that he was not able to do that now because of pain. He also said that he now has no social life and spends his time at home with his parents, although he occasionally goes to the shops.

11. He takes medication in the form of Mersyndol for pain relief and Ativan to help him to sleep.

12. Recently, he was seen by an orthopaedic surgeon because of pain and swelling in his knees and was told that he would need to undergo surgical procedures for the cartilage removal, for the left knee in about six months and then, after that has settled, for the right knee. He has not consulted a psychiatrist for any of his medical conditions.

13. The applicant said that he relied on the medical reports of Dr Powell to support his application.

Medical Evidence

Dr Powell

14. Dr Powell completed a report on 22 February 2002 (see T9) where she diagnosed "degenerative disease spine, hips, knees" and described "pain, stiffness, paresthesia legs, bilateral sciatica" with a duration likely to exceed two years. In her report of 29 July 2002 (exhibit 1), she said that the applicant is totally incapacitated for gainful employment because of "mild to moderate degenerative disease affecting his knees, hips, right shoulder and his spine from cervical to lumbo-sacral areas" as well as "stress disorder which manifests mainly as anxiety and sometimes with added depression".

15. In her report of 21 August 2002 (exhibit 2), she said:

"William has attended my practice since September 1995. He is currently applying for a disability pension because he is not capable of gainful employment because of his medical problems which are a chronic stress disorder and chronic pain from generalised osteoarthritis affecting in particular his spine, knees, hips and elbows.

I examined William on 14/8/02 to assess his level of functional impairment. I used Social Security rating tables. My assessment is as below:

He suffers from a chronic anxiety disorder which has stabilised to its present state. He is often very anxious and lacks confidence, motivation and concentration. He has a sleeping disorder and usually takes Ativan before going to bed. He is somewhat withdrawn socially and has difficulties with personal relationships. He is treated with counselling for this disorder. I have allotted him 10 points using table 6.

He has a chronic pain disorder secondary to his generalised arthralgia and joint stiffness and he finds it difficult to perform any physical activity for longer than about 10 minutes because of discomfort. He needs to take Mersyndol if he needs to perform physical activity for longer than about 30 minutes. He is often irritable because of his chronic discomfort. I have allotted him 15 points using table 20.

He has pain and stiffness in his knees and hips and his left knee sometimes gives way, he is not able to squat or kneel. I have allotted him 10 points using table 4.

He has a stiff neck with loss of ¼ range of movement when he attempts to turn to the left side. I have allotted him 5 points using table 5.1

He has a stiff painful back with loss of ¼ of the range of movement of his thoraco-lumbar spine. I have allotted him 10 points using table 5.2."

16. In a postscript, dated 26 August 2002, to that report, Dr Powell described the conditions as being "of a permanent nature and unlikely to improve in the foreseeable future" (exhibit 2).

Dr G Rolls

17. Dr Rolls from Health Services Australia completed a report on 5 August 1999 (see T7) in relation to an earlier claim by the applicant. He diagnosed "degenerative disease of the hips, knees and feet" but with "good range of movement" and the ability to "walk more than 500 metres". A nil rating was allocated under Table 13.1.1. Dr Rolls also described "low back pain" and allocated a rating of 10 points under Table 13.8.2. He also referred to "degeneration right shoulder" and allocated 10 points under Table 13.1.1. Overall, Dr Rolls assigned a total of 20 points and expressed the opinion that the applicant was "not fit for moderate to heavy work", that he "would have difficulties with full-time light work" but that "he could do some light part time work".

Dr C Mitchell

18. Dr C Mitchell, also from Health Services Australia, completed a report on 7 March 2002 (see T12) in which an overall rating of 20 points was allocated. These comprised nil ratings for the applicant's neck, shoulder and elbow conditions, 10 points under Table 5.2 for the loss of one-quarter range of movement in the lower back and 10 points under Table 4 for the hips and knees referrable to loss of mobility. Dr Mitchell also described the applicant's right knee as the "most painful".

19. Although the rating of 20 points was allocated by Dr Mitchell, he also said that, because the applicant had "recently worked for 3 months in a labouring job between 27 and 40 hours per week", he would be medically fit for full-time sedentary work.

Dr T McGrath

20. Dr T McGrath from Health Services Australia completed a report on 10 October 2002 (exhibit 3). He stated that he reviewed the complete file of the applicant including the recent reports of Dr Powell (exhibits 1 and 2). He noted the references by Dr Powell to a stress disorder associated with anxiety and depression and observed that this had not been nominated by her in her earlier report prepared at the time of claim. He noted that the applicant had not received any psychiatric treatment and that he had said to the Social Security Appeals Tribunal that the condition had not interfered with his social life. Accordingly, Dr McGrath allocated a nil rating under Table 6 for this condition. He continued:

"Mr Skepper has a chronic pain disorder secondary to chronic joint pain. He describes pain in his spine, knees, hips, elbows and shoulders. X-rays taken 4/3/02 knees show early patello-femoral joint degeneration only and 2/4/02 of spine and pelvis show minor osteoarthritis changes consistent with Mr Skepper's age. There is evidence of mild degenerative disease only.

Mr Skepper in evidence to the Social Security Appeals Tribunal reported that he was able to walk 1km, sit for 30 mins and stand 10 mins. On examination by Dr Mitchell 7/3/02, Mr Skepper had near normal range of movement of his cervical spine, loss of ¼ range of movement of his thoracolumbar spine, normal range of movement of his knees and hips, normal range of movement of his elbows and reduced range of movement of his shoulders.

In my opinion, the appropriate table to rate his chronic joint pain is table 20 and I would assign 15 points under table 20. Mr Skepper has moderate to severe symptoms which are distressing but prevent few everyday activities. Self-care is unaffected and independence is retained."

21. Dr McGrath also considered that it was significant that the applicant was able to sustain work with the local council for five months for 27 to 40 hours per week in carrying out duties associated with concreting, trowelling and edging of curbing. He concluded that the applicant was suitable for light semi-sedentary types of full-time work to 30 hours per week and that he would benefit from retraining for this.

Respondent's Case

22. Mr Letch did not dispute that the applicant suffers physical, intellectual or psychiatric impairment, as required under paragraph 94(1)(a) of the Act, but submitted that the overall impairment was less than 20 points. He submitted that Dr Powell's approach of amalgamating several different ratings was not one which was permitted under Schedule 1B and that the report of Dr McGrath should be adopted as correctly providing guidance for the use of the Impairment Tables. This meant that Table 20 should be adopted for the orthopaedic conditions and that a rating of 15 points should be made. He also submitted that a nil rating should be allocated, on the basis of Dr McGrath's report, for the anxiety disorder or depression under Table 6.

23. In the alternative, he submitted that, if the threshold of 20 points was achieved for the applicant's conditions, the evidence does not support a conclusion that the applicant has a continuing inability to work as provided for in sub-section 94(5) of the Act.

Consideration

24. It is not disputed and I am satisfied that the applicant suffers from physical impairment in relation to his spine, hips, knees, shoulders and elbows. I am also satisfied that he was suffering from the physical impairment as at the date of his claim and in the period of three months thereafter and that, therefore, the impairment for all of those conditions, as it is demonstrated in the medical evidence during that three month period, may be taken into account in the allocation of impairment ratings under the Impairment Tables.

25. There is also evidence that the applicant suffers from a form of psychiatric impairment due to anxiety disorder or depressive disorder. That is not referred in Dr Powell's report dated 22 February 2002 when the claim was lodged and the first reference to such condition is in the report of Dr Mitchell on 7 March 2002 which is within the thirteen weeks of the claim as set out in section 100 of the Act (above). However, the applicant has not seen a psychiatrist for this set of symptoms and it may well be the case that any psychiatric condition has not been investigated, stabilised and treated as required by the Introduction to the Impairment Tables (see above). In any event, the only impairment rating for the psychiatric condition is that of Dr Powell in her report of 21 August 2002 where she allocated 10 points under Table 6. That is outside the period of three months of the lodgement of the claim. During that three month period, defined by section 100 of the Act, Dr Mitchell described a "mild depression" and recommended a nil rating under Table 6. I am satisfied that a nil rating is applicable under Table 6 during the relevant period.

26. For the physical conditions, Dr Powell utilised Tables 4, 5 and 20 and combined the allocations under these Tables. Table 20 includes an instruction that "double counting of a particular loss of function, by the use of more than one table, must be avoided". To similar effect is paragraph 8 of the Introduction to the Tables which also states that Table 20 may be used to assign a rating instead of the system specific tables in the case of chronic pain. It is that approach which was adopted by Dr McGrath and I am satisfied that this is the appropriate table to be used in this case. It reads:

"TABLE 20. MISCELLANEOUS - MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN

Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.

Rating Criteria

NIL Controlled hypertension

Malignancy in remission with a good to fair prognosis

Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.

TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained.

Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.

Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity). Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks

Malignant hypertension - severe, uncontrolled

Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.

FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity."

27. Dr McGrath recommended that a rating of 15 points should be allocated under that table and this was the same rating as was recommended under Table 20 by Dr Powell in her report of 21 August 2002. I am satisfied that the applicant has moderate to severe symptoms which are more distressing but prevent few everyday activities and that his self-care is unaffected and independence is retained. Of particular significance to that finding is the fact that the applicant was able to maintain full-time physically demanding employment for a period of five months which ended the very day before the claim for disability support pension was lodged. This reflects an impairment rating of 15 points. It also means that the overall impairment is 15 points.

28. As the overall impairment of the applicant is less than the threshold of 20 points required under paragraph 94(1)(b) of the Act, this means that he does not qualify for the disability support pension. It is not necessary to consider the matter of whether or not the applicant has a continuing inability to work under paragraph 94(1)(c) of the Act.

Decision

29. The Tribunal affirms the decisions under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed: Sarah Oliver

Associate

Date of Hearing 29 October 2002

Date of Decision 12 November 2002

The Applicant Appeared in Person

Solicitor for the Respondent Mr S Letch, Departmental Advocate