Batterham and Secretary, Department of Family and Community Servi Ces

[2003] AATA 955

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 955

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1024

GENERAL ADMINISTRATIVE DIVISION		)
Re		TIMOTHY BATTERHAM

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date26 September 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) B J McCabe
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – disability support pension – eligibility – whether applicant’s conditions attract an impairment rating of 20 points or more under the Impairment Tables – whether conditions are permanent

Social Security Act 1991

REASONS FOR DECISION

26 September 2003 Mr B J McCabe, Member  

Introduction

1. Timothy Batterham applied to Centrelink for a disability support pension on 10 October 2001. Centrelink says he was ineligible to receive the pension at the time because he did not satisfy the criteria incorporated into the Impairment Tables referred to in s 94 of the Social Security Act 1991. The Social Security Appeals Tribunal (SSAT) affirmed the decision, and Mr Batterham has now approached this Tribunal for relief.

2.      The Tribunal must decide whether the applicant should have been awarded sufficient points under the Impairment Tables and had a continuing incapacity for work as at 10 October 2001, or within three months of that date. It follows that the applicant’s state of health now is not the issue. He may well be eligible for a pension if he were to apply again now. The issue in this case is the applicant’s condition at the time of his original application.

The Material Before the Tribunal

3.      The Tribunal was provided with the material required under s 37 of the Administrative Appeals Act 1975. Mr Batterham appeared in person at the hearing, which was held in Gympie. Ms Wallis-Dunn appeared on behalf of the respondent.

The Facts

4.      Mr Batterham was formerly a public servant. He had a responsible job in a managerial position in the Northern Territory. He said that he began to drink heavily as a result of his experiences and living conditions. He now says he suffers from alcoholism, although the SSAT notes he refused to acknowledge that condition at the time of the earlier hearing. He says he spends every spare dollar he receives on alcohol, although he gave evidence suggesting he paid his bills (most obviously the cost of his accommodation) out of his existing Centrelink benefits which left little to be spent on alcohol each fortnight.

5.      Apart from his alcoholism, he has suffered a number of serious injuries. Mr Batterham badly injured his foot in a car accident in April 2001. While recovering from that incident, he fell down a set of stairs on or about 14 June 2001 and seriously injured his shoulder. He was on crutches at the time because of his foot and overbalanced. He subsequently injured his hip on 6 August 2001.  He says his mobility was drastically reduced after the car accident in April 2001, and that little can be done for his condition.

6.      Mr Batterham also suffered from Carpal Tunnel syndrome. He had an operation for that condition some years ago.

7.      The SSAT examined the medical records and concluded the injuries were all temporary and had not stabilised. The SSAT noted the applicant was scheduled to undergo further surgery on his shoulder. The applicant points out his doctor only briefly entertained the thought of further surgery, and it has not taken place because the applicant was not an appropriate candidate for the procedure.

8.      The applicant also presented evidence about his alcoholism. Dr Herdy said in March 2003 that the applicant should be allocated 20 points under the relevant Impairment Table, which would be enough to qualify him for the pension. But while that may be true now, it is unclear whether it was the case in October 2001 or in the three months that followed the application. Since none of the other medical evidence clarifies the position, I am not prepared to disturb the SSAT’s conclusion that no points should be allocated.

9.      Dr Kuehnast said Mr Batterham’s condition was not permanent, and did not therefore attract any points under the Impairments Tables. She said the applicant’s conditions should improve with treatment. Dr Orbell’s report appeared to offer a more pessimistic prognosis, but the report did not address itself to the Impairment Tables. Dr Tadros apparently shares that pessimism, but he did not address himself to the Impairment Tables either.

10.     That leaves Dr Kuenhast. Mr Batterham was very critical of his treatment at the hands of Dr Kuehnast, but he gave no substantive reason to doubt the quality of her care or her assessment.

11.     I cannot be satisfied on the evidence before me that the applicant attracted the necessary 20 points under the Impairment Tables. In those circumstances, his current application must fail.

Conclusion

12.     The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  21 August 2003 (at Gympie)
Date of Decision  26 September 2003
The Applicant appeared in person
For the Respondent                  Ms Wallis-Dunn, Departmental Advocate