Batson and Secretary, Department of Family and Community Services

[2004] AATA 1285

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1285

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/178

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROBERT BATSON

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date3 December 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  This means Mr Batson’s application for review is unsuccessful.

....................[Sgd].......................

EK Christie
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – upper limb function – gastrointestinal – chronic pain – impairment rating – continuing inability to work.

Social Security Act 1991 s 94

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316;  (2002) 70 ALD 1
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
Jebb v Repatriation Commission (1988) 80 ALR 329

REASONS FOR DECISION

3 December 2004   Dr EK Christie, Member     

1.      This is an application by Robert Batson to review a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 3 February 2004 that Mr Batson was not entitled to disability support pension (“DSP”).

2.      In reaching this decision the SSAT concluded that Mr Batson had an impairment rating of 10 points under the Impairment Tables [Table 3: Upper Limb Function; and Table 11.1 Gastrointestinal (Hepatitis C)].  As this rating was below the 20 points required to qualify for DSP, Mr Batson was not entitled to DSP.  Given the finding, the SSAT did not consider whether Mr Batson had a continuing ability to work.

3.      At the hearing Mr Batson represented himself.  The respondent was represented by Mr S Letch, a Departmental Advocate.

4. At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” documents) (Exhibit 1) and the various documents lodged by the parties.

Issues before the Tribunal

5.The issues for the Tribunal to decide were:

A.whether Mr Batson has at least 20 points under the Impairment Tables; and if so

B.whether Mr Batson has a continuing inability to work.

Facts

6.Mr Batson lodged a claim for DSP on 10 October 2003.

7.On the basis of the evidence before it, the SSAT made the following findings:

A.Mr Batson claimed disability support pension on 10 October 2003;

B.Mr Batson sustained a laceration to the flexor carpi radialis tendon in his left forearm with resultant loss of strength and pain causing moderate interference with manual handling.

C.Mr Batson has been diagnosed with hepatitis C with minor symptoms with no functional limitations (T2, Folio 7).

8.      In its discussion of the evidence, the SSAT concluded that Mr Batson presented as an honest and credible witness who was straightforward in giving his evidence and in responding to questions from the Tribunal.

Examination of the Evidence

§  Evidence of Robert Batson

9.In response to the findings of fact made by the SSAT, Mr Batson stated:

A.that the injury to his left forearm led to a loss of strength and pain that caused a significant – and not a moderate interference, with manual handing.  Prior to the accident he could lift 30-40 kg all day.  However, he could now only carry 1-2kg of groceries for 5-10 minutes before suffering considerable pain; and

B.that his Hepatitis C condition caused him to fatigue easily and so affected his ability to work.

10.     Mr Batson said that the pain he experienced was intermittent and varied considerably depending on the use of his arm.  The pain worsened the more he used his arm.  He said that physiotherapy proved unsuccessful and, in fact, his actual response to treatment was a decline – rather than an improvement.

11.     He said that the chronic pain he experienced was difficult to deal with when using his arm.  He described the pain he now experienced, compared to October 2003, as being more constant, with the “intensity growing”.

12.     Mr Batson said that Dr Cassidy had treated him from the time of the injury to his left arm and he had seen him on four occasions.

13.     In terms of his ability to work, Mr Batson stated:

A.that he could not take up a position as a driver as he had no driver’s licence.  In addition, he could not cope with driving because mentally he found this type of work “too scary”.  In addition, changing gears would be a problem;

B.He rejected the Department’s claim he could do “supervisory work” as he had no people skills – no supervisory skills at all.  In addition, he would not tolerate working with people considered to be fools;

C.He accepted the following situation, as described by the SSAT, as applying now:

“M.Mr Batson said that he is a reasonably heavy user of alcohol but that when he was working full-time, this did not affect his work performance.”  (T2, Folio 6)

14.     Mr Batson said that he completely disagreed with the following statement made by Dr Balestrieri:

“Client should be capable of alternative work but seems focussed on litigation at the moment and assumes he cannot do any work.”  (T11, Folio 60)

§  Expert Medical Evidence:  Dr MA Balestrieri, Medical Assessor for Centrelink

15.Dr Balestrieri assessed the following condition:

Laceration to flexor carpi ulnaris tendon to forearm,

and he concluded that there was moderate interference of dominant arm function and gave a rating of 10 points under Table 3 (T11, Folio 49).

16.     It was Dr Balestrieri’s opinion that Mr Batson could currently work for 30+ hours per week, with or without any intervention programs.  For example, “vocational, educational”.  He suggested suitable work areas as being supervisory, console operator, driver, traffic controller (T11, Folio 53).  He commented that Mr Batson was “poorly motivated” with respect to work (T11, Folio 57).

§  Expert Evidence of Dr A Chan, Treating GP

17.     Dr Chan treated Mr Batson prior to Dr Cassidy.  Dr Chan no longer practises medicine (oral evidence of Mr Batson).

18.     Dr Chan diagnosed the following conditions:

(a)Left flexor carpi radialis tendon rupture resulting from wrist laceration at work (T5, T7)

Dr Chan’s report states that the current symptoms of this condition are “chronic pain limits lifting and grabbing objects.  Can’t even ride bike”. (T7, Folio 31).  It was his opinion that the current impact of this condition would last more than 24 months and that within the next 2 years the effects of this condition on Mr Batson’s ability to function would “remain unchanged” or “deteriorate” (T7, Folio 32).

(b)        Hepatitis C

Dr Chan’s report states that this condition is “stable” and has “nil” impact on his ability to function (T7, Folio 35).

§Expert Evidence of Dr E Cassidy, Treating GP

19.     Dr Cassidy provided the Tribunal with a report on Mr Batson’s medical condition and the impacts on his functioning ability (Exhibit 2, 26 August 2004). 

20.     In his report, Dr Cassidy referred to the following conditions:

(a)       Chronic Regional Pain Syndrome of left Upper Limb

“Mr Batson suffers from a chronic regional pain syndrome of the (L) distal upper limb which developed secondary to a work accident in March 2003 …

He has subsequently suffered from chronic pain in his (L) wrist and hand with significant functional deficits.  The functional deficits largely relate to his inability to perform prolonged fine or gross motor tasks with his (L) hand.

…

Mr Batson’s prognosis of complete recovery from his chronic regional pain syndrome is poor”; and

(b)        Chronic Hepatitis C Infection

“Mr Batson suffers from chronic hepatitis C.  It is likely that active hepatitis C infection is contributing to his liver dysfunction.

Active hepatitis C infection can be treated with immunotherapy.  Unfortunately, with Mr Batson’s alcohol dependence he is an unlikely candidate for this therapy.  Without this therapy, his liver function will continue to deteriorate.”

21.     Dr Cassidy identified two other conditions, haemochromatosis and alcohol use.  However, as both conditions do not satisfy the statutory requirements as being “a fully documented condition which has been investigated, treated and stabilised”, they cannot be assessed under the Tables.

22.Dr Cassidy Concluded his Report with the following Opinion:

“Mr Batson has no formal vocational training.  He has previously worked as a labourer.

Mr Batson’s chronic regional pain syndrome does not allow him to return to his chosen vocation.  As a result of his co-existing medical problems I believe he is unable to return to any meaningful form of employment.”

Contentions and Submissions of the Parties

23.     Mr Letch submitted that at the time of his claim, or within 13 weeks thereafter, Mr Batson attracted a total score of 10 points under Table 3 of the Impairment Tables.  Accordingly, having failed to achieve 20 points, Mr Batson’s claim was properly rejected.

24.     Mr Letch did not dispute that Mr Batson sustained a laceration to his left forearm or that Mr Batson suffers from a functional impairment.  However, it was his contention that 10 points under Table 3 was the appropriate score.

25.     Mr Letch noted that Mr Batson suffers from Hepatitis C.  In his treating doctor’s report dated 9 October 2003, Dr Chan indicates that the condition was “stable” and had no impact of Mr Batson’s functioning.  Accordingly, a “nil” rating under Table 11 was therefore appropriate. 

26.     Mr Letch submitted that sedentary work would be within Mr Batson’s capabilities.  He referred to Dr Balestrieri’s note, that work such as supervisory work, console operator, driver and traffic controller would be suitable.  Reference was also made to Dr Balestrieri’s comments at question 15 of his report, that is, that Mr Batson was “poorly motivated” in pursuing intervention to assist his ability to work.

27.     Mr Batson contended that the assessment under Table 3 was incorrect as his left forearm condition had led to a “significant” and not a “moderate” interference in function. 

28.     It was also his contention that the impact of his conditions prevented him from working 30 or more hours per week.

Statutory Requirements

29. Section 94 of the Act sets out the requirements for eligibility for disability support pension as well as the question of “continuing inability to work”.

“Qualification for disability support pension—continuing inability to work

94.(1)  [Qualification – continuing inability to work] 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;

…

Meaning of continuing inability

94.(2)[Meaning of ‘continuing inability to work]  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)[Secretary not to have regard to certain matters]  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.”

Inquisitorial Powers of the Tribunal

30.     At the end of the hearing, the Tribunal, with the consent of both parties, issued a Direction to ensure the correct and best informed decision could be made in Mr Batson’s case.  The Direction sought to obtain further expert medical opinion from Dr E Cassidy in relation to the assessment of Mr Batson’s condition under the appropriate Tables [Table 3 “Upper Limb Function”;  Table 20 “Miscellaneous Conditions – including Pain”;  Table 11.1 “Gastrointestinal”] as well as opinion on their impacts or his ability to function.  The time period for such an evaluation was the 13 week period - after the claim for DSP was lodged in October 2003.  The parties were invited to make supplementary submissions on this medical report when received. 

31.     In his report dated 7 October 2004, Dr Cassidy provided the following responses to the four questions asked by the Tribunal:

“1.       What impairment rating would you give for Mr Batson’s distal (L) upper limb function?

TEN

2.What impairment rating would you give for Mr Batson’s chronic regional pain syndrome of the (L) upper limb?

Unable to assess impairment rating as has not been fully investigated, treated and stabilized.

Recent finding of co-existent untreated (L) cervical spine dysfunction.

3.What impairment rating would you give for Mr Batson’s chronic hepatitis C infection?

TEN

4.Based on the effects of all the above conditions for which you consider that an impairment rating can be determined, to what extent would their limitations on Mr Batson’s functioning be such that the impairment(s) would of itself (or in combination) prevent Mr Batson from doing any work within the next 2 years, where ‘work’ means at least 30 hours per week at award wages or above?

Severe limitations on Mr Batson’s capacity to work.”

32.     Supplementary submissions were received from the respondent on 24 November 2004.  A telephone directions hearing was held on 29 November to facilitate further submissions from the parties.  Mr Batson stated that he did not make an issue of the Hepatitis ‘C’ condition at the time he saw Dr Chan as he believed he would qualify for the impairment rating of 20 points based on his upper limb (left) function.  The respondent’s position remained unchanged.

The Tribunal’s Decision-Making Powers

33.     “The question for the determination of the Tribunal is whether the decision [under review] was the correct one [that is, when there is only one decision] or preferable one [that is, when a range of decisions is available] on the material before the Tribunal: see Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, [per Bowen CJ and Deane J, at 68].”  In Mr Batson’s case, there is only one decision possible – whether Mr Batson is entitled to DSP.

34.     Administrative decision-makers are generally required to address the evidence before them and not confine themselves to evidence before a prior decision-maker whose decision is being reviewed unless the relevant legislation requires a decision to be based upon the circumstances at a particular point of time: see Australian Tea Tree Oil Research Institute v Industry Research and Development Board (2002) 124 FCR 316 at 324-326; (2002) 70 ALD 1; Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Jebb v Repatriation Commission (1988) 80 ALR 329 at 333).

35.     In Mr Batson’s case the only period the Tribunal can consider for entitlement to DSP, as prescribed by statute, is the 13 week period commencing from the date Mr Batson lodged his claim for DSP, 10 October 2003 to 9 January 2004 (emphasis added).

Consideration of the Issues

36.     The first issue for the Tribunal to decide is whether Mr Batson satisfies the requirements of having an impairment rating of 20 points or more under the various Tables.  It is clear that the outcome of this issue is dependent on the expert medical evidence before the Tribunal of Dr M Balestrieri, Dr A Chan and Dr E Cassidy.  The impairment ratings given by these doctors is as follows:

(a)      Table 3 (Upper Limb Function)

Both Dr Balestrieri and Dr Cassidy agree that the impairment rating for Mr Batson’s distal (L) upper limb function is 10 points.

(b)Table 20 (Chronic regional pain syndrome of the (L) Upper Limb)

Only Dr Cassidy assessed this condition for an impairment rating.  He concluded that this condition could not be given an impairment rating as it “has not been fully investigated, treated and stabilised”.  As a result a “nil” rating can only be given under Table 20.

(c)Table 11 (Chronic Hepatitis ‘C’ Infection)

Dr Chan gave an impairment rating of “nil”.  Dr Cassidy’s most recent report (7 October 2004) gave an impairment rating of 10 points.  However, Dr Cassidy’s earlier report (Exhibit 2, 26 August 2004) indicates that over the relevant period the Tribunal must consider – October 2003 to January 2004 - Mr Batson’s Hepatitis ‘C’ condition had not been fully treated and stabilised [see para. 20(b)]. 

37.     Consequently, the Tribunal on consideration of all the evidence and information before it on Mr Batson’s Hepatitis ’C’ condition, concludes:

(i)that, based on Dr Cassidy’s earlier report, no impairment rating can be given for the period October 2003 to January 2004, because Mr Batson’s Hepatitis ‘C’ condition has not been fully treated and stabilised; and

(ii)that, based on Dr Chan’s report and Dr Cassidy’s most recent report,  beyond January 2004 Mr Batson’s Hepatitis ‘C’ condition has deteriorated and the situation may well be that an impairment rating of 10 points may arise if this condition were to be assessed today.

38.     Based on the medical opinions and conclusions made by Dr Cassidy, Dr Balestrieri and Dr Chan, as contained in their expert reports, as well as the evidence and information before it, the Tribunal can make no other finding other than to make the following conclusions for impairment ratings over the relevant period October 2003 to January 2004:

Table 3          :          10 points

Table 20       :          Nil

Table 11       :          Nil

39.     Based on these impairment ratings, Mr Batson’s medical conditions are less than the rating of 20 points required under the Impairment Tables and so he does not qualify for the DSP.

40.     Given this finding, there is no need for the Tribunal to consider whether Mr Batson has a continuing inability to work.

41.     For all of the above reasons, Mr Batson is not entitled to receive disability support pension as at 10 October 2003, or within 13 weeks of that date.  Whilst this decision may be considered harsh by Mr Batson, the Tribunal cannot make any other decision based on the factual and medical expert evidence before it.  The Tribunal makes the observation that should Mr Batson’s upper limb function condition deteriorate further over time – as indicated by Dr Chan [see para. 18(b)], he may wish to consider lodging a new application for disability support pension in the future.

42.     Furthermore, the Tribunal makes the observation that given the Tribunal’s finding that Mr Batson’s Hepatitis ‘C’ condition has deteriorated since January 2004 [see para.36(c)(ii)], then Mr Batson should consider lodging a new application for DSP and have his current Hepatitis ‘C’ condition assessed at this point in time under the Impairment Tables together with his upper limb function.

43.     In reaching this decision, the Tribunal agrees with the finding of the SSAT that Mr Batson was “an honest and credible witness who was straightforward in giving his evidence and in responding to questions”.

44.     The Tribunal affirms the decision under review.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         Camille Banks

Associate

Date/s of Hearing  27 August 2004: Resumed Telephone Hearing 29 November 2004

Date of Decision  3 December 2004         
The Applicant appeared in person  
For the Respondent                  Mr S Letch, Departmental Advocate