Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 75 (3 February 2010)

Last Updated: 4 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4569

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MERVYN UEBERGANG

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Mr R G Kenny, Senior Member Mr P Wulf, Member

Date 3 February 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..................[Sgd]......................
Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements - disability support pension – loss of upper limb function constituting physical impairment – impairment rating of 15 points for upper limb function - relevant time-frame – applicant not qualified for disability support pension - decision affirmed.

Social Security Act 1991 (Cth) - section 94 Schedule 1B

Social Security (Administration) Act 1999 (Cth) Schedule 2

REASONS FOR DECISION

3 February 2010

Mr R G Kenny, Senior Member Mr P Wulf, Member

BACKGROUND

1. On 27 February 2009, Mervyn Uebergang lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of an injury to his upper left arm. On 25 March 2009, a delegate of Centrelink rejected that claim. That decision was affirmed by an authorised review officer on 29 April 2009 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 20 August 2009. Mr Uebergang has sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

LEGISLATION, ISSUES AND SUBMISSIONS

2. The qualifications to receive a disability support pension are set out in s 94 of the Social Security Act 1991 (Cth) (the Act). It is common ground that Mr Uebergang meets the age and residency requirements of that provision. The remaining requirements thereof are:
   • whether Mr Uebergang 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 s 94(1)(c)(i) of the Act.
     
3. To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the initial claim or in the period of three months starting immediately after the day on which a claim was lodged[1]. This is from 28 February 2009 until 29 May 2009 (the relevant period).
4. The undisputed diagnosis of Mr Uebergang’s upper limb condition is “complete rupture of long head of biceps of left arm”. For the respondent, Ms Brazier conceded that this constitutes a physical impairment and that, during the relevant period, it resulted in an impairment of 15 points under Table 3 of Schedule 1B. She submitted that, as this was less that the required threshold of 20 points, Mr Uebergang did not satisfy the disability support pension requirements. She also submitted that Mr Uebergang did not have a continuing inability to work as required by s 94 of the Act.
5. Mr Uebergang submitted that he has major difficulties because of his upper left limb condition such that an impairment rating under Table 3 of Schedule 1B of the Act was applicable to him. He also submitted that his age had not been sufficiently taken into account when assessing his capacity to undertake employment.

EVIDENCE

6. Mr Uebergang injured his left arm in May 2007. His treating doctor at that time was Dr Teresa Laminero. She completed a medical certificate on 6 June 2007 declaring Mr Uebergang unfit for work because of his left arm[2]. In a subsequent report, dated 19 February 2009, Dr Laminero diagnosed complete rupture of long head of biceps of Mr Uebergang’s left arm[3], described the onset of pain and inability to lift or carry weights and concluded that the condition would impact on Mr Uebergang’s ability to function for more than two years. However, she also expressed the opinion that Mr Uebergang was able to carry out the activities of daily living. A medical certificate, dated 16 December 2008, was completed by Dr Miles Kolarik from Mackay Base Hospital[4]. His opinion was that Mr Uebergang had been unfit for work in the previous 6 months.
7. A Job Capacity Assessment Report was completed in relation to Mr Uebergang by Diane Jenkins on 20 March 2009[5]. She also gave evidence. Ms Jenkins is social worker and has been employed by Centrelink as a job capacity assessor for 3 years. She described Mr Uebergang’s upper limb condition as permanent, fully diagnosed, treated and stabilised. Her opinion was that he demonstrated major loss of strength, mobility and sensation in his left arm which, she noted, was his non-dominant upper limb. Ms Jenkins considered that Mr Uebergang had a current capacity to work for 8 to 14 hours per week and, with intervention, a future work capacity of 15 to 22 hours per week in work such as courier driving over short distances and serving customers in a retail outlet.
8. In his evidence, Mr Uebergang agreed that his injured left arm was not his dominant arm. However, he said that he had always used both arms in handling and using equipment. He described an inability to lift anything heavy with his left arm. He lives on a small property near Sarina and, in return for his accommodation, he performs a caretaker role, keeping sheds and surrounding grounds tidy. He lives on his own and is able to care for himself and carry out the daily functions of living. He is able to drive his vehicle, which has a manual gearbox, but experiences a cramping sensation in his left arm after driving for longer distances such as on a round trip to Mackay, a distance of approximately 100 kilometres. Mr Uebergang has not been in employment since before he injured his arm. Previously, he worked in a range of labouring jobs in the construction industry, as a machinery ship loader and as a station hand. He agreed that he would be able to work for 3 hours per day in activities such as those identified by Ms Jenkins.

CONSIDERATION

9. A necessary requirement in s 94 is that Mr Uebergang’s physical impairment, as a result of his left arm condition, must equate to 20 or more points under the relevant Table in schedule 1B of the Act. In this matter, this is Table 3. It reads:

TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating	Criteria
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
FIVE	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN	Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling
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.
TWENTY	Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or Unable to use non-dominant upper limb at all
THIRTY	Unable to use dominant upper limb at all.

10. We accept Mr Uebergang’s evidence that he places reliance on both of his arms in carrying out various functions. That is not uncommon and, indeed, we see it as the usual situation in a wide range of human activities. However, on the basis of his evidence and that of Ms Jenkins, we are satisfied that Mr Uebergang is right arm dominant. We also accept Ms Jenkin’s assessment of the criteria in Table 3. It is consistent with that provided by Dr Laminero in her report. That description satisfies the criteria at 15 points for a non-dominant limb. In summary, we are satisfied that the applicable rating for Mr Uebergang’s left upper limb condition is 15 points. This is less than the threshold of 20 points required to qualify for the disability support pension[6].
11. We have noted Mr Uebergang’s reference to his age and its significance in this matter. While a person’s age has relevance in relation to the assessment of capacity for work when considering s 94 of the Act[7], it is not a relevant consideration in assessing the level of impairment under Table 3. As Mr Uebergang does not meet the threshold impairment requirement, it is unnecessary for us to consider his capacity for work under paragraph 94(1)(c) of the Act.

DECISION

12. The Tribunal affirms the decision under review.

I certify that the preceding 12 paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Mr P Wulf, Member

Signed: ...........................[Sgd]................................................

Kate Slack, Research Assistant

Date of Hearing: 28 January 2010
Date of Decision: 3 February 2010
The Applicant was self-represented
For the Respondent : Ms Michelle Brazier, Departmental Advocate

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[1] See sch 2, cl 3 and cl 4 of the Social Security (Administration) Act 1999 (Cth)
[2] See T6/27.
[3] See T12/47-54. This diagnosis was confirmed in an ultrasound at Mackay Base Hospital on 7 June 2007: see T8/37.
[4] See Exhibit 2.
[5] See T16/98-102.
[6] See s 94(1)(b) of the Act.
[7] See s 94(4) of the Act.