Graham and Department of Family and Community Services [2002] AATA 62 (18 January 2002)

Last Updated: 20 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 62

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/280

GENERAL ADMINISTRATIVE DIVISION )

Re KEVIN GRAHAM

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 18 January 2002

Place Melbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED at all relevant times the applicant qualified for Disability Support Pension.

..........Sgd. Mr J. Handley.............

Senior Member

CATCHWORDS

Social Security - Applicant 37 years - whether qualified for disability support pension - 20 impairment points conceded - whether 'continuing inability to work' - weight to be given to opinions of treating doctors - decision set aside.

Social Security Act 1991

Secretary, Department of Social Security v Pusnjak 1999 164 ALR 572

Acts Interpretation Act 1901

REASONS FOR DECISION

18 January 2002 Mr J. Handley, Senior Member

1. The applicant applies to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 8 February 2001. The SSAT then affirmed a decision previously made by an Authorised Review Officer (ARO) of Centrelink who refused the applicant's claim for a Disability Support Pension (DSP).

2. The hearing of this appeal was convened in Geelong on 20 December 2001. Mr Graham appeared without representation. The respondent was represented by Ms Cunningham. The Tribunal received into evidence documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 together with a report from Mr Addlem a Disability Support Officer with the Corio Office of Centrelink.

The Legislation

3. The qualification for Disability Support Pension is to be found at s.94 of the Social Security Act 1991. Omitting irrelevant parts that section is reproduced 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) .....

(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) ....

94(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 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".

94(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.

94(4) .....

94(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.

94(6) Person not qualified in certain circumstances. A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment".

4. For the purposes of this application there is no dispute that the applicant satisfies s.94(1). The applicant has a number of physical impairments and the respondent concedes that he has an impairment of 20 points or more under the impairment tables. Additionally, there is no dispute that the applicant has turned the age of 16 years and is an Australian resident.

5. The significant and remaining issue in dispute is whether the applicant has a "continuing inability to work" as that expression is found in s.94(1)(c).

The Facts

6. Mr Graham is presently 37 years of age having been born on 15 January 1965. He was educated to year 9 level but also completed year 10 mathematics. He has privately undertaken literary and numerousy studies and whilst he has no difficulty reading, he does have some difficulties with spelling. He has previously worked as a motor mechanic and has also held a number of unskilled labouring type positions. He presently lives with his wife and children on 3 or 4 acres of an 1800 acre farm near Geelong in Southern Victoria. He is presently in receipt of New Start Allowance.

7. Mr Graham has suffered injuries to his neck, back, hips, ankles, knees, feet, wrists and arms. He says he attempts to "keep busy on most days" however activity usually produces pain which subsequently incapacitates him. He consumes large quantities of pain killing medication and said at the hearing that if he is planning to undertake some activity he plans ahead and consumes pain killing medication in advance. He said that he feels as if he is in a "cycle" because he will consume pain killing medication to allow him to undertake activity without pain however he has become aware that pain is thereby masked and additional quantities of pain killing medication are then consumed to ease pain which eventually emerges.

8. Mr Graham is right hand dominant and he said that his arm and hand "fatigues quickly". He described his right wrist and fingers locking upon grip and said that his left wrist "is not much better" as a result of a fractured left arm approximately 10 years ago. Significantly Mr Graham suffered a major right arm injury in the mid 1990's when his arm was caught in a conveyor belt. He suffered tendon and bone injuries and received extensive hospitalisation as an in patient. He said x-rays of his neck depict a "shift" of 10 mm in one of his vertebrae and said he has a similar defect in his thoracic spine which has been explained to him as a birth defect.

9. In a typical week Mr Graham said that he maintains his lawn mowers and a number of motorcycles he keeps at home which he and his children use for recreation. He often helps friends with machinery breakdowns. Additionally he tenders a number of animals kept at this home being caged rabbits and guinea pigs and free range dogs, sheep and ducks.

10. Mr Graham said that his wife uses the lawn mower because vibration causes fatigue of his right arm. He also said that walking causes discomfort and pain in his back and legs. He does ride a motor bike which he described as more comfortable than being seated in a motor car, however vibration causes discomfort and he also suffers from neck pain because of his posture adopted by his head and neck when riding the motor cycle. He is a volunteer with a local branch of the Country Fire Authority and whilst he has been engaged in some fire fighting he says he is mainly now involved as a volunteer radio operator.

11. There was no dispute between the parties that Mr Graham is incapable of performing his former trade as a motor mechanic because it would expose him to heavy work, frequently involving stooping, bending and lifting. Mr Graham also said that he would not be able to undertake a job where he remained seated because his knees lock and his back aches.

12. Presently Mr Graham is registered with a job network provider at the Corio Village in Geelong and with the Commonwealth Rehabilitation Service. He said that he had been advised by an officer of Commonwealth Rehabilitation Service that funds have been depleted and there was no opportunity then to refer him to a rehabilitation program. He said that he does look for work as a qualification for ongoing Newstart Allowance however he said that he felt as if he was "deceiving" the Commonwealth because he is aware that he is unable to do the work that he applies for. He has explained this to Centrelink officers and has been told that he must look for work "as a formality".

13. Mr Graham said that he has applied in the past for courier driver type jobs together with employment in sales or mechanical engineering. He applies for jobs from advertisements in local newspapers and at the Centrelink office. He said that he is usually told by telephone that he is not suitable because of his disabilities and whilst he has on occasions been interviewed he has always been rejected. On one occasion he was told that he did not have adequate computer skills and whilst Mr Graham maintained that he did have some basic skills it was his belief that he would not be able to undertake work extensively involving a computer because gripping of a mouse would cause his fingers to lock. When he has been told by potential employers that he is not suitable for work it is usually because the jobs that he has applied for involved lifting or bending. There was an occasion when Mr Graham did apply at a service station for a position as a console operator but was told that the work would involve stocking shelves and loading refrigerators. This would have exposed him to heavy lifting and frequent bending and stooping. He said that he was unable to complete work of that type.

14. With respect to retraining opportunities, Mr Graham said that he did attempt a business management course at the initiation of the Commonwealth Rehabilitation Service about 2 years ago. The course was undertaken off campus and at a local Tafe college. He said he was unable to complete it because he was "not mentally inclined". Whilst he remains registered with a local private job network provider, he said that in his experience that provider was not interested in re-training and its objective is to place persons in employment only.

15. With respect to opinions expressed by Doctors who examined Mr Graham at the request of the Commonwealth (refer later), Mr Graham said that he is "not a good whinger" and usually when asked how he is feeling he would say that he is "good". He said he was only with one of the doctors for 10 minutes and who was not interested in observing x-rays that he brought with him to the consultation. He said he was astounded at the comments made by the Commonwealth doctors who reported that he was fit to return to work.

16. Mr Graham has been treated by Doctor Nolan for many years who has observed him in pain and who has prescribed medication.

David Addlem

17. Mr Addlem is a Disability Officer located at the Corio Office of Centrelink. He provided a report dated 16 May 2001, which had annexed to it notes of a conversation he had with Doctor Nolan on 15 May. Mr Addlem was called by Ms Cunningham to give evidence in these proceedings.

18. In his report Mr Addlem agreed that the applicant was incapable of being engaged in his previous employment as a motor mechanic however - and by reference to the reports of Doctors engaged by the Commonwealth - Mr Addlem noted that the applicant "is fit for light manual or sedentary work on a full time basis". He recorded that suitable positions available to him would be taxi driving, courier driving, picture framing, light carpentry, catering van attendant, photographic processor or storeman. He found that the applicant did not have injuries "as severe as he maintains" (because he "is able to do a wide range of tasks in his every day life") and accordingly the applicant was capable of working "in a range of occupations that would not be heavy and could have some flexibility in the tasks that he needed to do". He concluded, "there is not enough evidence for me to be satisfied he cannot do the work". Specifically he found that the applicant was capable of employment as a service station console operator. He also found the applicant was not prevented from undertaking training.

Medical Evidence

19. The T-documents contain a number of medical forms completed by Doctors who have examined and treated Mr Graham.

20. At T-5, Doctor Bell on 11 November 1999 found that the applicant had a right arm radial nerve injury following a fractured right humerus in 1997 with subsequent radial nerve paralysis. Whilst he noted that there was subsequent improvement there was persisting loss of power and grip exacerbated by vibration and repetitive movement. Dr Bell also noted that the applicant had an L5/S1 pars defect with spondylolisthesis and noted that the applicant's upper back pain had been worsened since the right arm injury. X-rays however of the cervical and thoracic spine at June 1999 did not disclose abnormality. He reported at November 1999 that the applicant would be "likely ..... to work part time" within three months but recorded then that he was not fit for any work that he could be "reasonably expected to do" for at least 30 hours and would not achieve that level of capacity within 2 years.

21. Dr Nolan, the applicant's current treating medical practitioner reported on 11 April 2000 (T-6) that the applicant's neck, upper back and lower back pain and injury caused the applicant difficulty sitting for periods in excess of 30 minutes and his lower back pain affected any activity involving bending or stooping or lifting. He recorded that all the conditions were "long term" and that they were "constant". He reported that the applicant was then able to return to part time work but would not have a capacity to return to work at 30 hours per week within 2 years. He noted that the applicant had attempted vocational training or rehabilitation "without positive effect".

22. Doctor Christoforou examined the applicant at the request of the Commonwealth on 23 June 2000 and his report is found at T-7. He made findings under the applicable tables (refer later) which gave rise to the concession by the respondent of 20 impairment points. He found that the applicant was fit then to work for at least 30 hours per week however at question 15 he recorded that the applicant would need "retraining for light work" before being able to return to work.

23. Doctor Nolan again examined the applicant for the purposes of this review on 22 August 2000 (T-8) and again recorded that the applicant was then unlikely to return to work for 30 hours per week within 2 years. In addition to the injuries previously recorded, on this occasion he found that the applicant also had bilateral foot/ ankle pain, which caused "constant bilateral foot pain". He found that the applicant had "tried physiotherapy and rehabilitation without positive response".

24. Doctor Henderson examined the applicant at the request of the Commonwealth on 29 September 2000 and his report is found at T-10. He concluded that the applicant was then fit to work for at least 30 hours per week and recorded that the applicant was unfit for work "which requires prolonged weight bearing, particularly on hard surfaces". He found the applicant was fit for "light manual or sedentary work on a full time basis" and suggested jobs as a taxi driver, courier driver or being engaged in picture framing, light carpentry, catering van attendant, photographic processing or as a storeman. He also thought that the applicant "may" benefit from vocational guidance or on the job training.

25. Attached to the report of Mr Addlem of 16 May were notes of a conversation he had with Doctor Nolan on 15 May. Those notes record that Dr Nolan indicated that the applicant "hadn't changed much in the two years that he had been treating" him. He has also reported as having said that he was "initially being optimistic that he would get applicant back to work but he now feels that applicant's conditions haven't improved but have slightly worsened if anything". Doctor Nolan is recorded as having said that the applicants arm injury was his "worst problem" with fatigue after duration of use and worsened by cooler weather. He said that the applicant had not improved over the time that he had been treating him and treatment had not made any difference. He thought the applicant was restricted in what he can lift and in bending and he noted that the applicant could not sit or stand for long periods. He also noted that the applicant's upper back was "worse" since the arm injury. He thought that all of the conditions "are probably impacting on each other". He is reported to have said to Mr Addlem that the applicant "has tried physical rehabilitation but this doesn't seem to have done much for him". He also thought the applicant was unlikely to have any capacity for work within two years. He also is reported as having said that the applicant "seems genuine with all of his problems".

Conclusion & Reasons For Decision

26. The respondent has conceded that the applicant has achieved 20 impairment points. This conclusion was reached following an assessment of the applicant's impairment under Table 3 (upper limb function) and Table 5.2 (Thoraco-lumbar sacral spine). Under each of those Tables the applicant achieved 10 impairment points.

27. The applicable criteria for 10 impairment points under Table 3 is-

"demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling".

28. The applicable criteria against 10 impairment points under Table 5.2 is-

"loss of one quarter of normal range of movement as well as back pain and referred pain.

i With many physical activities and

i With standing for about 30 minutes and

iwith sitting or driving for about 60 minutes".

29. The criteria as above suggests to me a significant level of impairment which must interfere with a claimants capacity for employment.

30. Having heard the applicant in evidence and read the documents lodged in these proceedings I am of the view that the doctors who have examined on behalf of the Commonwealth have underrated or underestimated the impact of the applicant's impairment upon his capacity for employment. I am also disappointed that Mr Addlem in his conclusions of 16 May 2001 ignored the information he obtained from Doctor Nolan on 15 May 2001. Dr Addlem has had regard only to the "HAS Doctors" and concluded - having found that the applicant was capable of some work - that there was "not enough evidence for me to be satisfied he cannot do the work".

31. Mr Graham made his application for Disability Support Pension on 24 August 2000. Eighteen months has expired since that time and he has not been able to work. The opinion of Dr Bell of 11 November 1999 (T-5, p.18) has - with hindsight - proved accurate because he then concluded that the applicant would not be able to work for at least 30 hours per week within 2 years. Doctor Nolan provided a similar opinion at May 2001.

32. I am now satisfied that the applicant does have a "continuing inability to work" within the meaning of s.94. I am satisfied that the applicant has a number of well documented, physical injuries which cause pain and discomfort upon modest activity. The respondent points to his involvement with the Country Fire Authority as a volunteer as an indicator of his capacity to be engaged in employment. At one level that may be a valid proposition however it ignores the applicant's testimony that activity causes pain and requires consumption of pain killing medication. It also ignores his evidence at the hearing that in advance of CFA activity he consumes large quantities of pain killing medication.

33. Mr Addlem said that the applicant was capable of being engaged as a service station console operator however the applicant himself had specifically applied for a position of that type and had been found to be incapable of performing that work because it would expose him to lifting and bending in the stacking of shelves and the replenishing of refrigerators.

34. On the applicant's own evidence, work involving sitting would cause his knees to lock and work of a clerical or computer type nature would cause his wrist and fingers to cramp or lock.

35. The applicant would be able to perform work from time to time but equally there would be periods of incapacity. The applicant could not be regarded as having the capacity to undertake work for any sustained period of time or be required to engage "sustained effort" (refer Re Pirie and Secretary, Department of Social Security AAT No. 11505).

36. Equally I am satisfied that the impairment suffered by the applicant is sufficient to prevent an undertaking of educational or vocational training or on the job training. I have reached this position because the extent of the applicant's impairment and his vulnerability to the onset of worsening pain by activity would cause him to be unable to complete any training satisfactorily.

37. I note the applicant has been extensively treated by doctors who have observed him over a number of years. Doctor Nolan is not confident the applicant will improve and he also noted that attempts at rehabilitation and retraining were unsuccessful. It is doubtful that any retraining now, even if successful would enable Mr Graham to return to work within 2 years. I place greater weight on the opinions of the treating doctors than the Commonwealth doctors who examined the applicant, each on one occasion and, on the applicant's evidence, for a limited duration.

38. I note the applicant is relatively young (37 years) and probably does not sit well with Centrelink's policy of qualification for DSP. Nonetheless, policy is useful but it is not a substitute for the legislation. I note that persons over the age of 16 may qualify for DSP.

39. In reaching these conclusions I am satisfied that the application of s.94 is not without controversy. In Secretary, Department of Social Security v Pusnjak 1999 164 ALR 572, Drummond J extensively analysed s.94 and concluded that a literal interpretation of s.94(2) did not conform with legislative purpose. He also concluded that this sub-section was "obscure" within section 15AB of the Acts Interpretation Act 1901.

40. In all of the circumstances I am satisfied that the decision under review should be set aside and in substitution it is decided that at all relevant times the applicant has qualified for Disability Support Pension.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.

Signed: ......C. Irons.......................

Secretary

Date/s of Hearing 20 December 2001

Date of Decision 18 January 2002

Counsel for the Applicant self represented

Solicitor for the Applicant

Counsel for the Respondent Ms K. Cunningham

Solicitor for the Respondent