Henderson and Secretary to the Department of Family and Community Services [2002] AATA 269 (19 April 2002)

Last Updated: 23 April 2002

DECISION AND REASONS FOR DECISION [2002] AATA 269

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/257

GENERAL ADMINISTRATIVE DIVISION

Re: KENNETH HENDERSON

Applicant

And: SECRETARY TO THE

DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal: M.J. Carstairs, Member

Date: 19 April 2002

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether applicant has impairment rating of 20 points or more.

Social Security Act 1991 s94 Schedule 1B.

REASONS FOR DECISION

19 April 2002 M.J. Carstairs, Member

1. This is an application by Kenneth Henderson (the applicant) for review of a decision of the Social Security Appeals Tribunal (the SSAT) made on 14 February 2001. The SSAT affirmed a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent), that the applicant was not qualified for disability support pension.

2. At the hearing, the applicant represented himself. Mr D. Perdon, an advocate with Centrelink, represented the respondent.

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, as well as the respondent's Statement of Facts and Contentions (exhibit R1) and two letters tendered by the applicant (exhibits A1 and A2).

BACKGROUND

4. The applicant was born on 20 March 1949 and is now 53 years old. He worked for a number of years in his own business of supermarket retailing. In 1997 the supermarket he was operating was destroyed by fire. He commenced a new business shortly thereafter. However this ceased in February 2000 due to problems with the shop lease.

5. The applicant, who received newstart allowance when the business ceased in 2000, lodged a claim for disability support pension on 8 September 2000. On 18 October 2000, a decision was made to reject his claim. After he was advised of the rejection by letter dated 19 October 2000 the applicant sought review of the decision. On 5 December 2000 an authorised review officer (review officer) affirmed the original decision to reject the claim. The review officer decided the applicant did not reach the necessary level of impairment prescribed under the provisions in the Social Security Act 1991 (the Act) to qualify for disability support pension. Additionally, the review officer considered that the applicant was not prevented from returning to full-time work within two years of the claim.

6. The applicant sought review with the SSAT on 8 December 2000. The SSAT agreed with the original decision that the required level of impairment was not met and so affirmed the decision to reject the claim. The applicant appealed to the Tribunal on 27 March 2001.

EVIDENCE

7. The applicant told the Tribunal that he suffered from a number of medical conditions. He said that he considered some of the conditions started at the time that he lost his business in the fire in 1997. He said that he thought that he developed ulcers, hiatus hernia and headaches after the fire. However he said that he sought no medical treatment at the time of the fire. He takes QuikEase, Lozec, and Simec to ease his hiatus hernia symptoms. However a sensation of choking interferes with his sleep.

8. The applicant said that he has back problems, which make walking difficult. At night he wakes frequently with pain. He said he has arthritis in both shoulders and in his hands. He injured his left hand in an industrial accident many years ago. Medical reports (see below) describe this as amputations to the upper parts of three fingers of the left hand. When he tries to lift with his left hand he is unable to do so. He said he also has occasional difficulty with right hand grip, as he lacerated his right hand in the fire at his business premises in 1997 and has some resultant loss of sensation.

9. The applicant said that he has a prostate problem, and while he was initially concerned that it was cancer, it has been diagnosed as a recurrent infection. That condition he said is one impediment to his ability to lift. He said he suffers from stress, biliousness and vertigo. Vertigo is a problem for him whenever he uses stairs or goes to multi-storey buildings. He had asked that the hearing be conducted in a ground floor room because of his problem.

10. The applicant said he has arthritis in his right shoulder. Pain radiates down his arm. This too disturbs his sleep. He said that his major problem, however, is a feeling of general lethargy. He said that nausea, back pain and anxiety also trouble him. He said that his treatment by Centrelink in regard to the claim for disability support pension has been upsetting for him. He also raised concerns about his treatment by his general practitioner, Dr A. Sahhar. The applicant has taken these concerns to the Health Services Commissioner (exhibits A1 and A2).

11. The applicant said that he is not well motivated to do things and has a poor appetite. He operates a small business from home copying videos. Whilst he has some computer skills and does not rule out the possibility of retraining in this area, he said he is not a good student and cannot concentrate.

12. Dr Sahhar prepared several medical reports and certificates. In one of the reports, dated 14 March 2000 (T7) which predated the applicant's claim for disability support pension, Dr Sahhar offered the following diagnoses:

(a) amputated fingers - left 3 middle fingers last two distal segments,

(b) right middle finger - injured in a fire - numbness,

(c) scrotum - varicocoele (L), and

(d) headaches and fatigue - "goes to sleep during the day".

13. The report at T7 went on to state that Dr Sahhar considered that the applicant was able to return to his usual job as store manager full-time within six months. It stated that the applicant was able to work part-time at the date of the report, and that the applicant could benefit from vocational training. The doctor suggested training in computers or office work. On the questions relating to work ability on the medical questionnaire, Dr Sahhar's views can be summarised as stating that the applicant had no limitations other than an inability to lift, or carry, and he would be restricted in his ability to persist at task without breaks.

14. On 4 August 2000 Dr Sahhar prepared a report (T9) in which he gave the following diagnoses:

(a) amputated fingers left hand - 30 years,

(b) backache, and

(c) arthritis R shoulder - cannot abduct fully.

Dr Sahhar indicated in T7 and T9 that the conditions he identified were all of a long-term nature, not temporary. In the later report (T9) Dr Sahhar stated that the applicant was not able to return to work either full-time or part-time for more than two years. In other medical certificates, which Dr Sahhar prepared in September 2000 (T13), he diagnosed backache and duodenal ulcer and later diagnosed anxiety state in a sickness allowance medical certificate dated 24 October 2000 (T17).

15. Dr T. Skinner, examining medical advisor, prepared a report for Health Services Australia dated 16 October 2000 (T14) in which he diagnosed the applicant as having:

(a) a condition of the thoraco-lumbar spine making him unfit for heavy lifting but with close to full range of movement,

(b) partial amputation of digits L hand,

(c) right rotator cuff syndrome,

(d) hypersomnolence and fatigue, and

(e) anxiety state.

16. Dr Skinner stated that the first three conditions were permanent, but the others were temporary. He considered that the applicant would be able to return to his usual full-time work as a store keeper within six months or would be able to study or work part-time within six months. Dr Skinner identified other conditions in an attachment to the report at T14 - namely hiatus hernia, peptic ulcer, and hypertension (all of which the doctor described as controlled on medication) and prostatomegaly and left varicocoele, the last of which was described as not limiting work capacity.

17. In the section of the report headed "Justification of Assessment", Dr Skinner wrote:

Examination: he spoke rapidly with some pressure of speech but was not overtly depressed or anxious; tender right rotator cuff insertion area range full; flexing back, got fingertips to mid shin level which looked about normal for him; amputated left digits 2-4 at PIP joint; scars of old laceration of tips of right digits 3 & 4. Blood pressure 150/100.

Conclusion and Opinion: he has limited dexterity in his left hand; the back problem makes him permanently unfit for heavy work; the shoulder problem renders him unfit for work at or above shoulder height; the anxiety is mild and should settle; the major factor limiting work capacity is fatigue and somnolence and this could present a safety risk while driving.

I suggested he discuss with his GP referral for sleep studies.

He managed to work in his business despite the above problems (apart from the anxiety) and I do not see him as permanently medically unfit for work.

I consider him temporarily unfit for work pending investigation of his hypersomnolence and settling of his anxiety state.

18. Dr Skinner's report assigned impairment ratings using the Tables for the Assessment of Work Related Impairment for Disability Support Pension in Schedule 1B of the Act (the Tables), which are used to establish qualification for disability support pension. Dr Skinner rated the applicant's thoraco-lumbar spine condition under Table 5.2 at NIL, presumably due to the almost full range of movement that Dr Skinner found. A NIL rating under Table 5.2 is given in the following circumstances:

NIL Normal or nearly normal range of movement.

19. Dr Skinner rated the partial amputation of digits of the left hand (the applicant is right-handed) at fifteen points under Table 3 which is the Table used to assess upper limb function. That level reads:

FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.

20. Dr Skinner rated right rotator cuff syndrome, diagnosed on the basis of a radiological report (T10) dated 27 July 2000, under Table 3 as NIL where the Table reads:

NIL Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

CONSIDERATION OF ISSUES

21. Section 94 of the Act relevantly provides:

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;

...

22. The applicant submitted that he was unable to work and that his medical conditions including lethargy prevented him from working. He said that there are no jobs that he can do due to his problems with manual dexterity. He has tried to get work. He would be a danger in many jobs, as he cannot lift, drops things and has problems in keeping awake. He said that, while he would like to work for himself and does run a small business from home in video sales, he said he is unable to borrow money to set up a business again, as he still owes money after problems arose with the lease in his last business.

23. Mr Perdon submitted that qualification for disability support pension requires that a person's impairment be at least 20 points under the Tables. Mr Perdon submitted that the Introduction to the Tables sets out that for an impairment rating to be assigned at all, a condition must be one that is fully documented and diagnosed, treated and stabilised, and likely to persist for at least two years. He submitted that the date at which this must be satisfied is at the date of the claim or within thirteen weeks of it.

24. Mr Perdon submitted that at the time of the claim the impairment affecting the applicant's upper limbs was to be rated as either 5 or 15 points under Table 3, depending on whether the interference with hand function was moderate or significant. He submitted that the medical evidence showed that the rating for the back was NIL and that the rating of the right upper limb was NIL as functional interference was mild. Mr Perdon submitted that Dr Skinner was correct to treat the conditions of fatigue and anxiety as conditions that could not be rated under the Tables as they were not conditions where treatment had been undertaken. He submitted that if it were found that the applicant had an overall impairment of 20 points, the applicant was still not qualified as he was not precluded from undertaking light to moderate work, especially as he had skills in this kind of work due to his retail background. He also submitted that the applicant could undertake vocational or other training within two years.

25. In coming to a decision the Tribunal has taken into account the oral evidence, medical reports and submissions. The evidence of Dr Skinner is that the applicant's anxiety condition and his condition of hypersomnolence and fatigue are of a temporary nature. The applicant's treating doctor, Dr Sahhar does not diagnose hypersomnolence and fatigue except in his report dated 14 March 2000 (T7) where he refers to headaches and fatigue. That report is some six months prior to the claim. In the following report dated 14 August 2000 (T9) Dr Sahhar does not identify these conditions. While Dr Sahhar identifies that the applicant had an anxiety state in a medical certificate dated 24 October 2000 (T17) he indicated that the applicant would be able to return to full or part-time work within 3 months. This supports the view of Dr Skinner that any anxiety state is of a temporary nature and not permanent. This means that the condition cannot be rated under the Tables at the time of the claim.

26. The Introduction to the Tables provides, in part:

...

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 ...

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, 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. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

* what treatment or rehabilitation has occurred;

* whether treatment is still continuing or is planned in the near future;

* whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

27. The evidence in this case is that the anxiety condition, the fatigue and hypersomnolence are not conditions that have been fully diagnosed, treated and stabilised. There is no evidence of treatment of the conditions, though in regard to fatigue the SSAT decision records that the applicant said sleep studies he had undertaken in October 2000 had not identified the nature of the problem.

28. Whilst the applicant raised concerns about his medical treatment, the Tribunal can only make a decision based upon the medical and other evidence before it. In this case the medical evidence is clear. On essential points there is agreement between the reports of Dr Skinner and Dr Sahhar.

29. The Tribunal is therefore reasonably satisfied that the conditions of hypersomnolence and fatigue, and anxiety state are not conditions that can be rated under the Tables at the time of the claim. No impairment rating can be assigned for them.

30. In regard to the remaining conditions - amputation to three digits of the left, non-dominant hand; thoraco-lumbar pain; and right rotator cuff syndrome - the reports of both Dr Sahhar and Dr Skinner identify these and state that they are permanent. The Tribunal is reasonably satisfied that the conditions are permanent and that they have been correctly rated in the report of Dr Skinner. Dr Skinner found that the applicant had near normal range of movement of the lower back, which attracts a rating of NIL under Table 5.2 and the Tribunal accepts that rating. Dr Skinner found that the shoulder restriction resulted in only mild limitation, which attracts a rating of NIL under Table 3 for the Upper Limb. However Dr Skinner's report noted that the amputation to the digits of the left hand with its effects on digital dexterity and interference with hand function resulted in interference of a significant level which attracts a rating of 15 points under Table 3 where the non dominant hand is affected. The Tribunal is satisfied that the diagnoses and ratings under the Tables are correct and finds that the total impairment rating was 15 points.

31. The Tribunal is therefore satisfied that at the time of the claim, in September 2000, the applicant did not meet the level of impairment set out in s94(1)(b) of the Act, which requires that a person have an impairment rating of 20 points or more in order to qualify for disability support pension. As the applicant did not meet the requirements of s94(1)(b) of the Act the Tribunal did not go on to consider whether the applicant had a continuing inability to work as required under other parts of s94.

DECISION

32. The Tribunal affirms the decision under review.

I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision herein of

M.J. Carstairs, Member

(sgd) Catherine Thomas

Clerk

Date of Hearing: 11 September 2001

Date of Decision: 19 April 2002

Solicitor for the applicant: Nil -- self-represented

Solicitor for the respondent: Nil -- Mr D. Perdon, Advocate with Centrelink