Law and Secretary, Department of Family and Community Services [2002] AATA 219 (5 April 2002)

Last Updated: 10 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 219

ADMINISTRATIVE APPEALS TRIBUNAL ) No Q2001/1038

)

GENERAL ADMINISTRATIVE DIVISION )

Re LUKE LAW

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date 5 April 2002

Place Brisbane

Decision The Tribunal affirms the decision under review

..................(Sgnd)..................

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 - section 94, Schedule 1B

REASONS FOR DECISION

5 April 2002 Mr R G Kenny, Member

Background

1. From 29 October 1998 until 9 January 2001, Luke Law (the applicant) was in receipt of disability support pension which is payable under the Social Security Act 1991 (the Act) in relation to the medical impairment he experienced from a leg injury suffered in a motor vehicle accident in 1985. As part of a routine review of his situation, the applicant was medically examined and, on the basis of the medical evidence, a delegate of Centrelink, on 9 January 2001, determined that the applicant was no longer qualified for the disability support pension as the level of his impairment was too low. That decision was affirmed by an authorised review officer on 18 April 2001 and, in turn, by the Social Security Appeals Tribunal on 4 October 2001. On 9 November 2001, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

2. Subsequently, payment of disability support pension was restored, with effect from 17 January 2002, to the applicant on the basis of medical evidence of further deterioration in his leg condition.

Appearances

3. The applicant attended the hearing but was not represented. Mr T Ffrench, Manager of the Advocacy and Administrative Law Team with Centrelink, appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

4. At the hearing, the following material was taken into evidence from the respondent:

Exhibit 1 - documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T and S documents: T1-T30; S1-S11);

Exhibit R1 - a medical report, dated 23 October 2001 from orthopaedic surgeon, Dr Peter Johnstone;

Exhibit R2 - a report, dated 15 August 2001, from psychologist Simon Langston;

Exhibit R3 - a report, undated but received on 24 December 2001, from the applicant's treating doctor, Dr Irene Hides;

Exhibit R4 - an undated statement from the applicant;

Exhibit R5 - a further report, dated 10 December 2001, from Dr Hides; and

Exhibit R6 - a workability report completed by the applicant on 24 December 2001.

Issues and Legislation

5. The issues in this matter relate to whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Act. That provision relevantly 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;

(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."

6. In accordance with that provision, 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.

7. To qualify for a disability support pension, all three of these requirements must be met by the applicant. Further, they must have been met at the time of cancellation of disability support pension on 9 January 2001.

8. There are several tables in Schedule 1B with potential relevance in this matter because the applicant has been treated for a range of conditions over the years. However, a precondition to the operation of any table in the Schedule is that the relevant condition being assessed "has been investigated, treated and stabilised". It will be seen below that this requirement is not met with all of the medical conditions that the applicant has.

Applicant's Evidence and Submissions

9. The applicant, who was born on 5 December 1958, gave oral evidence to the Tribunal including the following history of his health problems. Because of a fractured femur, he had been in receipt of disability support pension from 1986 until 1998 but then attempted employment with his brother's accountancy firm. He could work only for four hours at a time and did this on four of five occasions per week. The environment was a protected one in the sense that he was given much assistance in carrying out many of his tasks. His attempts to work at that time caused major problems for him and he became depressed and was treated, for a short time, with medication for that condition. He ceased working for his brother and attempted to get work independently but there was no real prospect of his being able to undertake full-time work.

10. The applicant said that, since disability support pension had been taken from him, he had received a smaller income by way of alternative income support payments from Centrelink. However, in addition, he had lost certain concessions for which he was eligible when disability support pension had been paid to him.

11. The applicant was critical of the approach and attitude of two Health Services Australia (HSA) doctors who had reported that his impairment was below 20 points. These were Dr Moss and Dr Toft. He said that Dr Moss was very abrupt with him and he believed that this was because he was unavoidably a few minutes late for his consultation. He said that Dr Toft appeared to rely merely on the report of Dr Moss.

12. The applicant submitted that regard should be had to the full array of medical conditions from which he suffers. These include his left leg condition, his lumbar spine condition, a right shoulder condition, a left wrist condition, gastro oesophageal reflux problems, asthma, depression and hypertension. In his evidence, he conceded that hypertension had only recently been diagnosed and that his depression was the subject of ongoing investigations and treatment regimens. He said that he experiences pain in his lower back. For his shoulder, he said that he has undergone surgery on three occasions. He said that he has lost strength in the shoulder and experiences pain when undertaking activities. It also causes him discomfort when sleeping. For the reflux condition, he said that this "comes and goes" and that his asthma is under control. His main problem is his left leg which is significantly shortened, causes pain and contributes to a limping gait. He said that the condition has been worsening over time.

Medical Evidence

13. In evidence before the Tribunal were reports from Dr Hides, dated 16 October 2000 (T13) and exhibits R3 and R5. In the first of those reports, she refers only to the leg condition in assessing the applicant's situation and described it as being "long term" and as being treated with NSAIDS. In exhibit R3, she requested that the Tribunal take into account the effects of hypertension, which she referred to as being present from October 2001, and depression. In exhibit R5, she described the left leg condition as being "permanent" and "stable". No other condition is described by Dr Hides as being permanent and stable.

14. Also in evidence were three HSA reports. In the first of these, dated 31 January 2001, Dr Moss referred to the right shoulder condition and the left wrist condition as presenting "mild interference with upper limb function only" with "no demonstrable loss of function". For asthma and reflux, he described symptoms as being "controlled by medication". For each condition, he allocated a nil rating under the relevant table of Schedule 1B. For the lower limb condition, Dr Moss allocated a rating of 10 points under table 4 of Schedule 1B on the basis that the applicant is able to walk 400 metres albeit with "some difficulty"; to "manage stairs but not frequently" and with a "demonstrable loss of mobility". He described the depression as not being fully stabilised and treated.

15. Dr Toft, in the report dated 12 April 2001, referred to the applicant's thoraco-lumbar spine as demonstrating a "full range of movement"; his left leg as involving "moderate interference with walking, climbing and kneeling"; his right shoulder as demonstrating "mild interference with manual handling"; his left wrist as revealing "normal function"; asthma and reflux as being "controlled" and depression as presenting "mild symptoms". Dr Toft allocated a nil impairment for all conditions except for the left leg condition for which he allocated a rating of 10 points under Table 4 of Schedule 1B.

16. The final HSA report, dated 27 February 2002, was from Dr Mowat and, along with the orthopaedic report of Dr Johnstone, provided the basis for disability support pension being reinstated. This was because Dr Mowat allocated a rating of 20 points for the applicant's left leg condition under Table 4 of Schedule 1B. He referred to "mild interference with manual handling" as flowing from the right shoulder and left wrist; hypertension as being "controlled on medication"; and depression as "not fully stabilised". He allocated ratings of nil for these conditions.

17. The report of Dr Johnstone described the applicant's condition as worsening and he recommended a rating of 20 points under Table 4 of Schedule 1B because of limitations on walking.

Respondent's Case

18. Mr Ffrench conceded that the applicant suffered from a physical impairment in relation to his left leg but also submitted that, as at the date of cancellation of the disability support pension, this was, at the most, 10 points under Table 4 of Schedule 1B. He submitted that regard could not be had to hypertension as it was not present at the date of cancellation and that depression could not be rated because it was not treated and stabilised.

19. Mr Ffrench also submitted that that there was no demonstrated inability to undertake employment as required by sub-section 94(2) of the Act but that this issue would not arise if the threshold level of impairment was not reached. He conceded that this was now reached in relation to the left leg but that this was not the case at the date of cancellation.

Consideration and Findings on Material Facts

20. 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.

21. The evidence, in particular that of Dr Toft, Dr Moss and Dr Mowat, is that depression is not yet stabilised in the applicant. The Tribunal so finds and is reasonably satisfied that an impairment rating can not be allocated for that condition.

22. For hypertension, there was no diagnosis for that condition at the time of cancellation. The Tribunal finds that it was not present at that time and, again, is reasonably satisfied that an impairment rating can not be allocated for that condition.

23. There is no medical evidence to point to anything other than a mild interference with the functioning of the applicant's upper limbs. That is the effect of the evidence of the HSA doctors. The Tribunal so finds and is reasonably satisfied that an impairment rating of nil can be allocated for the right shoulder and left wrist conditions under Table 3 of Schedule 1B. Similarly, for asthma and reflux, the evidence is that these are controlled on medication. The Tribunal so finds and is reasonably satisfied that an impairment rating of nil can be allocated for each of these conditions under Tables 21 and 11, respectively, of Schedule 1B.

24. It is not in dispute that the applicant suffers physical impairment from the injuries he sustained to his left leg. Table 4 of Schedule 1B is used to assess lower limb function and it provides the following criteria:

Rating Criteria

NIL: Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.

TEN: Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

TWENTY: Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or

Unable to walk or stand but independently mobile using a self-propelled wheelchair.

THIRTY: Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:

requires quad stick, crutches or similar walking aid, or is unable to transfer without assistance.

FORTY: Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.

25. The Tribunal accepts the correctness of Mr Ffrench's submission that impairment must be assessed as at the date of cancellation of disability support pension. All of the medical evidence pertaining to that time leaves the Tribunal reasonably satisfied that the appropriate rating at that time was 10 points under Table 4 of Schedule 1B. There is evidence that the condition is worsening and that is consistent with a higher rating being allocated currently as compared with the rating as at the date of cancellation of disability support pension. The Tribunal has noted that criticism by the applicant of the approach adopted by Dr Toft and Dr Moss. However, there reports are detailed and considered and the Tribunal has no reason to doubt their correctness.

26. For the applicant to qualify for the disability support pension, all of the requirements of section 94 of the Act must be satisfied. The level of the applicant's impairment is less than the threshold of 20 points required by paragraph 94(1)(b) of the Act. It follows that an essential component of the provision is not met and that, therefore, the applicant was not qualified for disability support pension at the time of cancellation of his disability support pension.

Decision

27. The Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

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

Associate

Date of Decision 5 April 2002

Date of Hearing 25 March 2002

The Applicant appeared in Person

Solicitor for the Respondent Mr T Ffrench, Advocacy and Admin Law Team