Bartlett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 369 (18 May 2010)

Last Updated: 20 May 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 369

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3285

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Debra Bartlett

Applicant

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 18 May 2010

Place Sydney

Decision

The decision under review is affirmed.

........................[SGD]......................
Senior Member

CATCHWORDS

SOCIAL SECURITY – Pensions – Disability Support Pension – continuing inability to work –. ability to undertake a training activity

Social Security Act 1991 (Cth) – s 94

REASONS FOR DECISION

18 May 2010

Senior Member A K Britton

1. Mrs Debra Bartlett seeks review of the decision to reject her claim for Disability Support Pension (DSP). Mrs Bartlett suffers from a number of medical conditions, including back and knee problems, diabetes, and a skin condition. To be eligible for DSP under the Social Security Act 1991 (Cth) (the Act), Mrs Bartlett must satisfy a number of criteria, including a minimum impairment rating prescribed by the Act and a “continuing inability to work” at least 15 hours per week. The respondent Secretary concluded that Mrs Bartlett met neither of these requirements, and on that basis rejected her claim for DSP in November 2008. On review, the Social Security Appeals Tribunal affirmed that decision. Mrs Bartlett now seeks review of that decision by the Administrative Appeals Tribunal.
2. The Secretary now concedes that Mrs Bartlett has an impairment rating of at least 20 points and therefore meets the minimum impairment rating prescribed by the Act (see s 94(1)(b) and Schedule 1B of the Act). The Secretary remains of the opinion that Mrs Bartlett does not have a “continuing inability to work”. Mrs Bartlett disagrees and contends that her disabilities prevent her from working.

LEGISLATIVE FRAMEWORK

3. Section 94(1) of the Act sets out the criteria Mrs Bartlett must satisfy to qualify for a disability support pension. These include “a continuing inability to work” (s 94(1)(c)(i)). Mrs Bartlett will have a continuing inability to work if the decision–maker is satisfied that:

(i) the impairment, is of itself, sufficient to prevent her from doing any work that exists in Australia for at least 15 hours per week, “independently of a program of support”, within the period, two years from the date of claim — that is, 3 November 2008 to 3 November  2010, (s 94(2)(a) of the Act); and either
(ii) the impairment is of itself sufficient to prevent her undertaking a training activity, as defined, during the subject period, (s 94(2)(b)(i) of the Act); or
(iii) if the impairment does not prevent Mrs Bartlett undertaking a training activity, such activity is unlikely (because of the impairment) to enable her to do any work independently of a program of support within the subject period (s 94(2)(b)(ii) of the Act).

4. Section 94(3) provides that in deciding whether or not Mrs Bartlett has a continuing inability to work because of an impairment, the decision-maker is not to have regard to:

(a) the availability to the person of a training activity; or

(b) the availability to the person of work in the person's locally accessible labour market.

5. Section 94(4) provides that a person is treated as doing work “independently of a program of support” if the decision-maker is satisfied that to do the work the person:

(a) is unlikely to need a program of support that:

(i) is designed to assist the person to prepare for, find or maintain work; and

(ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or

(b) is likely to need such a program of support provided occasionally; or

(c) is likely to need such a program of support that is not ongoing.

6. The term "training activity" is defined by s 94(5) to mean one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a) education;

(b) pre-vocational training;

(c) vocational training;

(d) vocational rehabilitation;

(e) work-related training (including on-the-job training).

7. Section 94(5) of the Act defines “work” to mean work:

(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b) that exists in Australia, even if not within the person's locally accessible labour market.

DOES THE IMPAIRMENT OF ITSELF, PREVENT MRS BARTLETT FROM DOING WORK THAT EXISTS IN AUSTRALIA FOR AT LEAST 15 HOURS PER WEEK?

8. This inquiry requires an examination of the relationship between the impairment suffered by Mrs Bartlett and the extent to which it prevents her from doing “any work” at the statutory wage rate for which she has skills and experience, that exists in Australia, of at least 15 hour per week. (see Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 451, and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [29], [31]). That assessment must be undertaken in respect of the two year period commencing on the date Mrs Bartlett lodged a claim for DSP, that is, 3 November 2008 to 3 November 2010. As is apparent, some time has passed since that claim was lodged and therefore the assessment of capacity for employment involves a retrospective and prospective inquiry. While not strictly correct, for convenience, in these reasons, I will use the present tense when referring to Mrs Bartlett’s capacity throughout the period, 3 November 2008 to 3 November 2010, (“the subject period”).
9. Mrs Bartlett’s skills and experience Mrs Bartlett left school in Year 10. She did not obtain the School Certificate. Since leaving school she has not undertaken any formal training. She has very basic computer skills.
10. Mrs Bartlett has held one job since leaving school — as a charge hand with the Australian Jockey Club. She worked on a casual basis and averaged about one and half days per week. She left that position in August 2006 after 26 years because, on her account, her back had become increasingly “unreliable” and increasingly she had to call in sick with little notice. She said she loved her job and would still be there if it were not for her back.
11. As a charge hand, Mrs Bartlett’s duties included preparing and clearing the Club’s dining and bistro room, serving meals, collecting plates of prepared food from the kitchen, overseeing staff and cashier duties. She was not required to process EFTPOS or credit card payments. Mrs Bartlett had some limited supervisory responsibilities which included signing staff time sheets and allocating staff between the bistro and dining room.
12. Nature of Mrs Bartlett’s “impairment” Mrs Bartlett suffers from back and knee problems, a skin condition and diabetes. All constitute an impairment within the meaning of s 94(1)(a) of the Act (see also Schedule 1B of the Act).
13. In an assessment conducted in March 2010, at the request of Centrelink, exercise physiologist, Mr Adam Gruchot, concluded that Mrs Bartlett’s back and knee each attracted an impairment rating of 10 points and, her diabetes and skin condition, a nil impairment rating.
14. Back condition Mrs Bartlett suffers from degenerative lumbar spine disease. Since an injury in 2004, she has experienced pain and stiffness in her back. She manages these symptoms by taking pain and anti-inflammatory medication, undergoing regular chiropractic treatment and using a TENS machine. When assessed in March this year, it was found that all movements in her lumbar spine were significantly reduced. She testified that the pain is constant and sometimes crippling. She reports that her sleep is disturbed and she considers herself lucky if she is able to manage a few hours of uninterrupted sleep. In her opinion her back is now only slightly worse than it was when she made her original claim in 2008.
15. Knee condition Mrs Bartlett has osteoarthritis of the right knee. She says that her knee seizes and locks on occasion and is often swollen. The pain in the right knee is constant and sometimes excruciating. Recently, she has experienced some pain in her left knee. She has been told by an orthopaedic surgeon that she will need a right knee replacement in the near future. In Mrs Bartlett’s opinion, her symptoms have worsened since making her claim in 2008.
16. Skin condition Mrs Bartlett suffers from hidradenitis of the axilla – swollen, painful, inflamed lesions on the skin of the armpits. Surgery was performed in 2007 and the condition is now well-managed. Her doctors have advised her skin can tear easily and is “like paper”. The condition prevents Mrs Bartlett from lifting above shoulder height but does not otherwise impinge on her capacity for work.
17. Diabetes Mrs Bartlett’s diabetes is well-managed and does not restrict her functional capacity. She is not insulin dependent.
18. Functional capacity Mrs Bartlett testified that she cannot kneel or squat, and finds it difficult to walk up and down stairs, get in and out of a car, and walk on uneven surfaces and slopes. She also claimed that she cannot sit or stand for more than about five minutes, even when she is able to change positions or “squirm around” to ease her discomfort. She claimed that that her back prevents her from, among other things, picking things up from the floor, tying her shoes, lifting a small basket of dry clothes and standing or sitting for more than five minutes at a time. None of the assessors whose reports are before me have questioned the veracity of these claims.
19. Mrs Bartlett attributes these restrictions primarily to her back problems and to a lesser extent to her knee. She says she is unable to predict from one day to the next if her back will “play up”. She said it was because of that unpredictability that she eventually decided to resign from her job at the AJC. In her opinion, she would be unable to return to the AJC or undertake any other employment because of her back and knee problems.
20. In his report dated 15 March 2010, Mr Gruchot concluded that Mrs Bartlett would be unable to return to work as a caterer because of her back and knee conditions. He thought that without retraining she would be unable to compete in the “open labour market”, but once “suitably retrained”, would be able to:

... reliably perform work on a sustainable basis for a reasonable period of time without requiring excessive leave or work absences. Appropriate choice of vocation/employment would be regarded as work in an open, unsupported form of employment and allowing Mrs Bartlett to not require excessive support to perform the work. Examples would include Office assistant/clerk, customer service attendant, cashier, console operator and dispatch officer.

21. In a report prepared in 2008 at the request of Mrs Bartlett’s solicitors, apparently in relation to a workers compensation claim, Dr Richard Deveridge stated that in his opinion, Mrs Bartlett was permanently unfit for repetitive bending, heavy lifting, carrying, twisting, pushing and dragging, and should avoid prolonged periods of sitting and standing.
22. In a report dated 10 March 2010, Mrs Bartlett‘s treating doctor, Dr John Houston, wrote that in his opinion, she would benefit from weight loss and regular exercise and with weight loss could undertake 15 hours of work per week.
23. Conclusion The Secretary concedes that Mrs Bartlett is unfit to return to her pre-injury duties but is of the opinion that she would be fit to work up to 15 hours per week in semi-skilled and light employment. In support, the Secretary points to the opinion of Mr Gruchot:

Light work such as an officer assistant/clerk, customer service attendant, cashier, console operator, despatch officer or customer service work, for example, is likely to allow some change of position as required and no kneeling, squatting or climbing. The majority of the day’s tasks will involve sitting. Standard occupational health and safety procedures within a compliance workplace would allow for frequent rest breaks and alternating of positions. Primary functional tasks in such roles would be of an upper limb nature and would render frequent lower limb activity redundant. Mrs Bartlett would be able.

24. In my view, Mr Gruchot failed to have proper regard to the extent to which Mrs Bartlett’s impairments impact on her sitting and standing tolerances. As noted, her treating doctor is of the opinion that, consistent with her self-report, she would experience significant back pain if she were to sit or stand “in one spot for any length of time”. Furthermore, Mr Gruchot’s opinion would appear to be based on the unrealistic assumption that if Mrs Bartlett were to secure work in the areas nominated — officer assistant/clerk, customer service attendant, cashier, console operator, despatch officer or customer service work — a prospective employer would tolerate Mrs Bartlett changing positions and/or taking rest breaks every five to ten minutes. Whether Mrs Bartlett is able to do “any work independently of a program of support” for the purposes of s 94(2)(a) is to be assessed against a “normal” workplace and not one where significant allowances or adjustments are made to accommodate her disability or where the employer could be described as “benign”: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris at [34].
25. While Mrs Bartlett’s treating doctor is of the opinion that she is fit to work up to 15 hours per week, his opinion is qualified by the assumption that she has lost weight. It is implicit from his report that until such time that she loses weight and undertakes a regular exercise program, she will be unfit for work. His opinion does not assist the Secretary’s argument, as an assessment of whether Mrs Bartlett is “prevented from doing any work” throughout the subject period is to be undertaken having regard to her state of health and fitness throughout the subject period and not what it might be like if, in the future, she were to follow her doctor’s recommendation. There is no evidence that Mrs Bartlett has taken steps to lose weight or undertake a regular exercise program. Accordingly, Dr Houston’s opinion does not support a finding that Mrs Bartlett is fit for work throughout the subject period.
26. It is agreed that Mrs Bartlett has been and will continue to be unfit for anything other than light work throughout the subject period. In my opinion, she is also unfit for all of the forms of light employment nominated by the Secretary, primarily because of her limited sitting and standing tolerances. Her limited work experience and lack of training and education self-evidently restricts the class of work for which Mrs Bartlett is suited. Coupled together with the functional restrictions arising out of her impairments, I am satisfied that Mrs Bartlett is prevented from doing any work independently of a program of support throughout the subject period.

(II) IF MRS BARTLETT WERE TO UNDERTAKE A TRAINING ACTIVITY, IS SUCH ACTIVITY UNLIKELY (BECAUSE OF THE IMPAIRMENT) TO PREVENT HER FROM DOING ANY WORK INDEPENDENTLY OF A PROGRAM OF SUPPORT WITHIN THE SUBJECT PERIOD

27. As noted, the term “training activity”, is broadly defined and includes education and vocational rehabilitation: s 94(5). I am satisfied that Mrs Bartlett‘s impairment of itself would not prevent her from undertaking a “training activity”.
28. The more difficult question is whether having undertaken such activity, Mrs Bartlett would be unlikely to be able to do any work independently of a program of support. This of course depends on the type of program Mrs Bartlett was to undertake. In my view if she were — as recommended by Mr Gruchot — to broaden her vocational skill base and, in addition, undertake vocational rehabilitation in the form of back pain management and/or an exercise program, it could not be said it would be unlikely that she would be unable to do any work independently of a program of support within the subject period.
29. It is apparent that Mrs Bartlett has a strong work ethic, and her decision to resign from her position in 2006 was not made lightly. It is also apparent that her complaints of pain and restricted movement are genuine, and if anything she has understated the seriousness of her condition. There can be no argument that the combination of her back and knee condition has significantly reduced her functional capacity. While I am satisfied that Mrs Bartlett cannot work up to 15 hours work throughout the subject period, the Act requires that I must also be satisfied that if she were to undertake a training activity it is unlikely she would be unable to do any work for which she is suited independently of a program of support. Having regard to the broad definition of “training activities” together with the nature of Mrs Bartlett’s impairment, I cannot be satisfied that this would be the case, and for that reason her claim for disability support pension must be rejected. It follows that I must affirm the decision under review.
    

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ....................................[SGD]..........................................

Associate to Senior Member Britton

Date of Hearing: 12 May 2010

Date of Decision: 18 May 2010

The Applicant appeared in person.

Representative for the Respondent: Ms S Memmott,

Centrelink Advocacy Branch