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Administrative Appeals Tribunal of Australia |
Last Updated: 17 July 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
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Re |
MICHAEL ROBINSON |
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And |
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Tribunal |
Mr R G Kenny, Member |
Decision
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The Tribunal affirms the decision under review. |
(Sgd) R G Kenny
SOCIAL SECURITY - disability support pension - whether applicant has physical, intellectual or psychiatric impairment - whether condition has been fully investigated, treated and stabilised - whether condition permanent - whether applicant has impairment rating of 20 points or more - relevant time-frame for qualification
Social Security Act 1991- section 94, Schedule 1B
Social Security (Administration) Act 1991 - Schedule 2
17 July 2003 |
Mr R G Kenny, Member |
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BACKGROUND
1. On 13 March 2002, Michael Robinson (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of disabilities he nominated as "carpal tunnel syndrome, tinnitus both ears, neuralgia from nerve entrapment after hernia operation and sciatica after operation". On 22 April 2002, a delegate of Centrelink rejected the applicant's claim. That decision was affirmed by an authorised review officer on 12 November 2002 and, in turn, by the Social Security Appeals Tribunal on 5 December 2002. On 8 January 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
APPEARANCES
2. The applicant attended the hearing but was not represented. Mr J Howard from the advocacy and administrative law team with Centrelink, appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
3. At the hearing, the following material was taken into evidence:
Exhibit 1: documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1-T33);
Exhibit 2: a medical report, dated 7 February 2002, from Dr D Phillips, surgeon;
Exhibit 3: a medical report, dated 30 March 2003, from Dr G Fielding, general surgeon;
Exhibit 4: a medical report, dated 8 April 2003, from the applicant's treating doctor, Dr P Hawes;
Exhibit 5: a statement, dated 27 May 2003, from Dr C Mitchell, medical adviser with Heath Services Australia; and
Exhibit 6: a record of a conversation between the applicant, Mrs Robinson and Dr G Fielding.
ISSUES AND LEGISLATION
4. The issue in this matter is 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 Social Security Act 1991 (the Act) which 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;
(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.
(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."
5. 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.
6. To qualify for a disability support pension, all three of those requirements must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of thirteen weeks starting immediately after the day on which his claim was lodged as provided for in clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) which relevantly read:
3(1) If:
(a) a person makes a claim for a social security payment; and
(b) the person is qualified for the payment on the day on which the claim is made;
the person's start day in relation to the payment is the day on which the claim is made.
...
4(1) If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
4(2) For the purposes of subclause (1), the following provisions have effect:
(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;
(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child."
APPLICANT'S EVIDENCE
7. The applicant, who was born on 2 January 1961, gave oral evidence to the Tribunal. He said that his main problem is the pain in his groin associated with two hernia operations and to what he believed to be nerve entrapment which resulted from those procedures. He said that, for nerve pain, he has taken panadol forte and neurotron which have been prescribed by his treating doctor. He said that he had been told that he should attend a pain clinic but had not done so because it had not been arranged by anyone.
8. The applicant said that his condition has presented him with major limitations and that he now spends most of his time relaxing by sitting and watching television. He said that he no longer is able to enjoy his previous interests of cycling, gardening, building or looking after his car, and that he is unable to take a full part in raising his three children because of the pain he suffers. He said that he is able to drive a car but only for short distances and that he is unable to sit or stand in one place for long periods as he needs to shift position frequently. He denied telling Dr Bellenden from Health Services Australia that he was able to cycle, swim and garden and said that he told Dr Bellenden that his treating doctor had advised him to try these activities but that he was unable to perform them.
9. The applicant said that he was registered with Centrelink for employment but said that there was no realistic prospect of getting a job with his pain levels. He also said that he has not investigated options such as courses at TAFE college for which he may be suited. He also said that his affected leg had lost 8 kg in weight compared to his other leg.
10. He noted the report of Dr Mitchell and was critical of the process that the respondent had employed in exchanging documentation with him because it meant that Dr Mitchell of Health Services Australia had not had the benefit of perusing the recent report of Dr Howe before he completed his report.
MEDICAL EVIDENCE
11. In evidence before the Tribunal were reports from the applicant's treating doctors. In the first report, dated 12 March 2002 and which accompanied the initial claim, Dr K Treichel referred only to right leg sciatica and chronic pain but he also described the condition as being "temporary" (see T8-36). In a second report from Dr Treichel on 11 June 2002, the condition is described as a lumbar disc problem and, again, chronic pain is the nominated symptom and it is describes as being "temporary" (see T14-57).
12. Dr I Martin, surgeon, completed a report on 19 September 2002 after seeing the applicant and he described the two surgical procedures that the applicant had in 1999 and in 2000 and the continuation of pain despite that intervention. He described progressively worsening groin pain. Dr Martin stated that there was no evidence of hernia recurrence, that the applicant's pain was of uncertain aetiology and that surgical intervention would not be helpful.
13. The applicant was seen by neurosurgeon, Dr M Redmond, who provided a report dated 1 August 2002 (see T17-66). There, he referred to the herniorrhaphies performed on the applicant and to a continuation of his groin pain. He reported no spinal deformity or tenderness, a full range of spinal movement and no neurological signs in the lower limbs. Dr Redmond then saw him again after an MRI scan was done and he completed a further report, dated 27 September 2002 (T28-93). He reported that this revealed some disc degeneration but no significant nerve compression. He said that this could be causing some pain referral and that he should be handled with pain management.
14. Dr G Bellenden from Health Services Australia completed a report on 28 August 2002 (see T21-84). He referred to four conditions: the results of the hernia operation, low back pain, bilateral carpal tunnel syndrome and bilateral sensori neural hearing loss with tinnitus. In relation to the first of these, he said that the applicant transferred easily with no expressions of pain or difficulty and said that he "cycles, swims and even gardens but complains of pain".. He recommended a rating of less than 10 points. For back pain, he noted the ongoing investigations for this condition and considered that no rating could be allocated because the condition was still temporary. For carpal tunnel syndrome, he described the applicant as being normal on examination and allocated nil points under Table 3. For hearing loss, he was unable to find medical evidence of a problem in this regard.
15. Dr D Phillips, surgeon, in his report dated 7 February 2003 (exhibit 2), recounted the history of two surgical procedures for the applicant's hernia and he also described the pain symptoms in the applicant. He recommended that he be referred to a pain clinic or that he undergo surgical division of his ileo inguinal nerve and genito femoral nerve though he also said that this may result in permanent anaesthesia.
16. Dr G Fielding, general surgeon, in his report dated 30 March 2003 (exhibit 3), stated that the applicant has nerve irritation and "almost certainly a trapped nerve." He opined that this could be repaired by further surgery and he noted that the applicant had declined this procedure on two occasions. He described the applicant's major symptom as pain and he indicated that, after he had referred to the "available tables", the applicant was 20% impaired. He also stated that the applicant would be prevented from doing his normal work but that it would not prevent him from undertaking educational or vocational training.
17. Dr C Mitchell, medical adviser with Health Services Australia prepared a report, dated 27 May 2003, in which he noted the reference by Dr Fielding to 20% impairment but he also noted that Dr Fielding did not indicate the table that he used and expressed the opinion that the appropriate rating was 10 points. He also does not refer to the table used but made the allocation on the basis of the descriptions given by Dr Ballenden of the applicant's activities and of Dr Fielding's reference to the capacity of the applicant to undertake educational or vocational training.
18. The applicant's current treating doctor, Dr Hawes, provided a report on 8 April 2003 (exhibit 4). There, he made reference to the following conditions: nerve entrapment, laceration to the right forearm and carpal tunnel syndrome. He described ongoing pain and queried whether the applicant would undergo further surgery for his groin condition.
APPLICANT'S CONTENTIONS
19. The applicant submitted that the he had not been kept fully informed about his groin condition by the various doctors that he had seen, that he had been subjected to incorrect treatment programs and that this had led him to lose faith in medical advisers. He submitted that he had undergone a major reduction in the activities that he is able to undertake and that he would not be able to complete any retraining because of these problems. He submitted that he met the requirements for the disability support payment to be made to him.
RESPONDENT'S CONTENTIONS
20. Mr. Howard referred to the terms of section 94 of the Act and, while conceding that the applicant had a physical disability, he submitted that, in the relevant period starting on the date of claim and running for 13 weeks, the condition was not fully treated and stabilised and that, therefore, no impairment rating could be allocated to it. Alternatively, he submitted that, if a rating should be made, it would be less than the 20 points required under paragraph 94(1)(b) of the Act. He also submitted that the medical evidence was to the effect that the applicant was capable of vocational training and that, therefore, he did not satisfy the terms of paragraph 94(1)(c) of the Act.
CONSIDERATION
21. It is not in dispute that the applicant suffers physical impairment as a result of the hernia operations he underwent in 1999 and 2000 or that he experiences pain as a result of this. This was the only condition listed by his treating doctor, Dr Treichel, in the initial claim and it was described by him in that report and in the later report on 11 June 2002 as being temporary. Section 94 of the Act requires the tables in Schedule 1B of the Act to be used in calculating impairment ratings and that schedule includes an introduction which sets out the methodology for applying the various tables. It provides that, for a rating to be assigned, the condition must be "a fully documented, diagnosed condition which has been investigated, treated and stabilised". Further, it provides that the condition must be considered to be "permanent".
22. The reports of Dr Treichel do not support a finding that the condition was permanent at the time of the claim or within the thirteen week time-frame provided in clause 4 of Schedule 2 of the Administration Act. Other medical evidence confirms the non-permanent nature of the applicant's condition in that period. Dr Martin's report on 19 September 2002 described uncertain aetiology of the applicant's pain; Dr Phillips' report on 7 February 2003 recommended that he be referred to a pain clinic or that he undergo a surgical procedure for the condition; Dr Fielding in his report on 30 March 2003 described a trapped nerve which could be repaired by further surgery; and his current treating doctor, Dr Hawes, provided a report on 8 April 2003 where he queried whether the applicant would undergo further surgery for his groin condition. Significantly, the second report of Dr Treichel was dated 11 June 2002 and this was at the end of the relevant thirteen week period.
23. I am satisfied that the applicant's groin condition and associated pain were not fully investigated, treated and stabilised and, in that sense, not permanent at the date of his claim or at any time during the period of thirteen weeks thereafter. This means that an impairment rating can not be allocated to that condition.
24. I have also considered the applicant's situation in the event that a rating could be allocated in relation to his groin condition.. I am satisfied that the appropriate table in Schedule 1B of the Act for the condition would be Table 20 which is a miscellaneous table and which, inter alia, relates to pain. It provides the following descriptions of symptoms for pain at levels up to a rating of 20 points:
Rating |
Criteria |
|---|---|
NIL |
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. |
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. |
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. |
25. Dr Fielding referred to a 20% level of impairment in the applicant but did not indicate the table on which he was relying. I accept the opinion of Dr Mitchell in his report of 27 May 2003. There, he noted Dr Fielding's reference to the capacity of the applicant to undertake educational or vocational training and he concluded that the appropriate rating was 10 points. The applicant denied telling Dr Bellenden that he was able to "cycle, swim and garden". However, Dr Bellenden was also able to comment on his actual observations of the applicant and he described him as being able to transfer "easily" with "no expressions of pain or difficulty". I have noted that applicant's concern that Dr Mitchell did not have the advantage of reading Dr Howe's report. However, I am satisfied that this report would have made no material difference to the opinion of Dr Mitchell. In the event that an impairment rating were to be applied under Schedule 1B of the Act, I am satisfied that the appropriate rating would be 10 points under Table 20.
26. The applicant has other conditions which were not referred to by his treating doctor in his initial claim and, therefore, are not able to be allocated an impairment rating. In any event, there is no medical evidence of any impairment for these conditions under the relevant tables in Schedule 1B of the Act. Dr Mitchell, in his report of 27 May 2003, expressed the opinion that ratings of nil were applicable for the applicant's back condition, for his carpal tunnel syndrome and for his tinnitus. That was also the opinion of Dr Bellenden in his report of 28 August 2002.
27. 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 his claim or at any time in the thirteen week period thereafter. As the applicant does not meet the requirements of paragraph 94(1)(b) of the Act, this makes it unnecessary to consider his capacity for work under paragraph 94(1)(c) of the Act.
DECISION
28. The Tribunal affirms the decision under review.
I certify that the 28 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 Decision 17 July 2003
T he Applicant appeared in person
Solicitor for the Respondent Mr J Howard, Departmental Advocate
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