Henwood and Department of Family and Community Services [2002] AATA 24 (17 January 2002)

Last Updated: 17 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 24

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/621

GENERAL ADMINISTRATIVE DIVISION )

Re KEVIN HENWOOD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date 17 January 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

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

J Cowdroy

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether condition permanent

Social Security Act 1991 s 94(1)

REASONS FOR DECISION

17 January 2002 Ms J Cowdroy, Member

BACKGROUND

1. The applicant lodged a claim for payment of disability support pension on 22 December 2000 (T11). By decision dated 4 July 2001, the Social Security Appeals Tribunal affirmed a decision made by Centrelink on 17 February 2001 to reject Mr Henwood's claim for disability support pension.

2. The Tribunal determined that the applicant's disabilities attracted an impairment rating of 10 points under the impairment tables. As this is less than the threshold requirement of 20 points, it decided that the applicant did not meet one of the qualifications for payment of disability support pension.

3. The applicant applied for review of the Social Security Appeals Tribunal's decision on 18 July 2001.

HEARING

4. The matter was heard on 19 November 2001. The applicant appeared in person and gave evidence. Miss J Dwyer appeared for the respondent. At the conclusion of the hearing, the matter was adjourned to enable the applicant to provide further information to the Tribunal, in the form of a report from Dr D W Walters, orthopaedic surgeon, which was received on 23 November 2001. Written submissions were received from the respondent on 4 December 2001 and on 7 December 2001 the applicant indicated that he did not wish to provide any further material. The Tribunal proceeded to determine the matter on the basis of the T documents, the oral evidence of the applicant and the submissions of both parties.

APPLICANT'S EVIDENCE

5. The applicant underwent fusion of the tarso-metatarsal joints of the right foot in May of 2000 to correct a collapsed arch. He also underwent surgery to the left foot, where a pin was inserted in an effort to correct a hammertoe. Later, the pin was removed from the toe of his left foot. He underwent further surgery on the left foot in June of 2001, which has made it a "bit better".

6. The metal pins inserted in his right foot did not hold, and consequently he underwent a further fusion in October of 2000. It was thought that another operation involving further straightening of the foot might assist, but it has now been determined that further surgical intervention would not be of benefit.

7. The left foot is slightly better, however the applicant continues to suffer ongoing problems, including swelling and pain in the right foot which prevents him from wearing closed shoes.

8. His working history is that of labourer. He is still unable to wear safety boots. Although his foot problems have not resolved, he has been told that further surgical intervention would not assist. He suffers pain in the foot, even at rest, and uses a walking stick for support if he leaves his house. He has to be careful when lifting objects, as he has no feeling in the right foot.

9. The applicant has consulted a number of medical practitioners, including orthopaedic surgeons, for treatment, including Dr Price, who performed the first operation, as well as Drs Chu, Gatehouse and Walters. Dr Chu is the applicant's general practitioner. He also referred the Tribunal to a report from Dr A Reilly, (exhibit 2), who is the house surgeon at Ipswich Hospital, who, in preparing that report, relied on the notes of other practitioners, and did not examine the applicant. The applicant has consulted Dr Walters more frequently than the other doctors, as he supervises his treatment.

10. The applicant said that both feet ache if he spends too much time on them. His toes are misshapen and he has difficulty putting on shoes. He is not computer literate and believes that if he were asked to perform clerical work, he would get "flustered". The applicant said his skills are of the practical, "hands-on" variety. He is eager to undergo any form of re-training if this would result in him obtaining employment. The applicant has enquired about a part time position in an office, but at that time he was still covered by a sickness certificate.

RESPONDENT'S SUBMISSIONS

11. The respondent contended that during the relevant time, the applicant's medical conditions had not stabilised and therefore could not be regarded as permanent. In order for a condition to be regarded as permanent, it must have been diagnosed, treated and stabilised and it is more likely than not that the condition will persist for the foreseeable future, which is taken as lasting for more than two years.

12. In this context, the respondent referred to the medical reports before the Tribunal. Dr Chu, in a report dated 7 November 2000 (T7) stated that bilateral foot conditions were temporary and fluctuating. Dr A Leaming, Commonwealth Medical Officer, on 25 January 2001 (T13) stated that the right foot condition was temporary on the basis it had not yet been fully treated and stabilised.

13. The respondent acknowledged that since the decision was reviewed by the review officer, Dr Chu was of the opinion that both feet conditions were long term and stable (T29-133). Further, Dr Gatehouse had categorised the conditions as stable and improving and that they were likely to persist for at least two years (T25-122).

14. Dr Dalton (T-29) on 1 May 2001 opined that both foot conditions were stable and likely to persist for at least two years. Miss Dwyer conceded that the conditions are now permanent but that this was not the case when the applicant lodged his claim. In respect to the reports provided by Dr D W Walters, orthopaedic surgeon, dated 19 November 2001, and that of Dr Reilly dated 10 September 2001, the respondent contended that neither provide any information about the applicant's conditions at 22 December 2000 to 22 March 2001. During that period, it was submitted that the conditions were not fully treated and stabilised and therefore they could not be regarded as permanent conditions at that time.

15. Further, it was submitted that, in the event that the Tribunal considered that the conditions were permanent at the relevant time, then the appropriate impairment rating to be assigned was 10 points under Table 4 on the basis it caused moderate interference, rather than major interference with walking and other activities, which is the threshold required for the allocation of 20 points.

16. In respect to the other criteria for payment of disability support pension, the evidence of the applicant's work capacity at the relevant time is to the effect that he did not have a continuing inability to work. Multiple medical opinions had stated that the applicant had a capacity to resume work within less than two years, and that, even if he was unable to return to labouring type work, that he was capable of being re-trained in a sedentary job such as car park attendant, toll booth attendant, or basic clerical work.

THE LEGISLATIVE PROVISIONS AND THEIR APPLICATION

17. The legislation covering the qualification for disability support pension is contained in Section 94(1) of the Social Security Act 1991, which states as follows:

"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; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satifies 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 dependant child of an Australian resident;

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

18. Each of the criteria set out in sub-sections (a) to (e) must be satisfied. It is not in dispute that the applicant meets sub-sections (d) and (e). In respect to sub-sections (1)(a) and (b), there must be evidence of a physical, intellectual or psychiatric impairment and such impairment must rate 20 points or more under the Impairment Tables.

19. The Impairment Tables are contained in Schedule 1B of the Act. A rating can only be given under those tables if the condition is a fully documented, diagnosed condition which has been investigated, treated and stabilised and it must be considered to be permanent. The Tables state that

"it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years".

20. It is clear from more recent evidence that the applicant's feet conditions are permanent. However, the Tribunal is bound to have regard to the state of the evidence at the relevant time period, that is from the date the applicant lodged his claim (22 December 2000), to a period three months later (22 March 2001). The evidence in respect to the applicant's conditions commences on 11 October 2000, when he was discharged from hospital following surgical procedures on both feet.

21. On 7 November 2000 Dr Chu referred to an operation on 24 May 2000 followed by the words "but has had complications". He has marked that the condition as temporary, fluctuating and constant (T5-24). In answer to the question, "could the patient benefit from vocational (work) training or rehabilitation?", he has answered "not yet until healed" (T5-25).

22. On 20 December 2000, Dr Chu states that the condition is long term and fluctuating and, in respect to treatment, he has indicated that the applicant is "awaiting more operations" (T10). This is corroborated by the outpatient record at Ipswich Hospital dated 19 December 2000 which sets out a treatment plan including "x-rays to both feet, ? further surgery" (T12). From that time regular reviews have been occurring

23. On 25 January 2001, Dr A Leaming (CMO) states the condition is not yet fully treated or stabilised (T13). The Tribunal notes that Mr Henwood did not agree with the Commonwealth Medical Officer's assessment. On 7 March 2001 Dr Chu, whilst describing the condition as long term and fluctuating, is still of the view that further surgery is required. Dr Gatehouse on 21 March 2001 described the condition as long term but when asked if the condition was stable, replied "unsure"(T25-121).

24. On 4 June 2001, Dr Chu describes the condition as "long term stable" in respect to both feet. It is not until that date that there is evidence supporting the fact that the condition had been fully treated and stabilised. As mentioned earlier, the letters of Dr Reilly and Dr Walters attest to the fact that the conditions are now permanent. However, until such opinion is forthcoming, the conditions cannot be regarded as permanent.

25. Consequently, the applicant does not meet one of the criteria for payment of disability support pension at the relevant time. There is therefore no need to address the issue of whether he has a continuing inability to work.

26. The Tribunal affirms the decision under review.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

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

Associate

Date of Hearing 19 November 2001

Date of Decision 17 January 2002

For the Applicant In person

For the Respondent Miss J Dwyer