Bell and Department of Family and Community Services - [2000] AATA 585

DECISION AND REASONS FOR DECISION [2000] AATA 585

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/568

GENERAL ADMINISTRATIVE DIVISION        )
           Re      DAVID JOHNSTONE BELL
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal DR J D Campbell

Date14 July 2000
PlaceSydney

Decision      The Tribunal determines that the decision under review be affirmed.
  …………………………………
  Dr J D Campbell
  Member
CATCHWORDS

Social Security – Disability Support Pension – Physical Impairment – Scleroderma – Assessment – Inability to work.
Social Security Act 1991, sections 94, 100, Schedule 1B.

REASONS FOR DECISION

DR J D CAMPBELL
July 2000

Mr David Bell, ("the Applicant"), in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 17 March 1999, which affirmed the decision of the authorised review officer dated 4 December 1998. This latter decision affirmed earlier decision of the Centrelink delegate of the Secretary Department of Family and Community Services ("the Respondent") dated 28 September 1998 to reject the Applicant's claim lodged on 8 July 1998 for disability support pension.
A hearing was held before the Tribunal at Armidale on 17 February 2000 at which the self-represented Applicant gave oral evidence. The Respondent was represented by Ms Schuster, an advocate from the Administrative Law Section of Centrelink.
The following written material was placed in evidence before the Tribunal:

Documents prepared pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 T1-T16 (pp1-103)
Medical Report from Dr McKeon dated 11 November 1999    Exhibit A1
Submission from Mr Bell dated 14 February 1999        Exhibit A2
Respondent's Statement of Facts and Contentions dated  21 September 1999            Exhibit R1
Respondent's Submission dated 9 February 1999       Exhibit R2

issues:

The relevant issues in this matter are:
1.whether the Applicant has a physical, intellectual or psychiatric impairment that is 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991; and
2.whether the Applicant has a continuing inability to work because the impairme of itself prevents the Applicant from doing and work for at least 30 hours per week at award wages within the next 2 years; and either:
(i) the impairment of itself is sufficient to prevent the applicant from undertaking educational, vocational or on the job training during the next 2 years; or
(ii) because of the impairment, such training is unlikely to enable the applicant to do any work for at least 30 hours per week at award wages within the next 2 years.

legislation:

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1) - (5) and 100(3) and Tables for Assessment of Impairment for Disability Support Pension (Schedule 1B Impairment Tables.)
background:
The Applicant lodged a claim with the Respondent for a disability support pension on 2 July 1998 (T4). A treating doctors report was completed on 3 July 1998 (T6) and an approved medical practitioners report was completed on 26 August 1998 (T7). A file assessment was undertaken by a medical officer from Health Services Australia on 8 September 1998 (T8). The Applicant's claim was rejected on 6 October 1998 and was reviewed by the original decision maker on 12 November 1998 (T12). The matter was further reviewed and the original decision affirmed by the authorised review officer on 4 December 1998 (T14). This decision was affirmed on review by the Social Security Appeals Tribunal in a decision dated 17 March 1999 (T2).
evidence – the applicant:
The Applicant told the Tribunal that he was born on 6 February 1946 and completed his intermediated certificate before undertaking a 12 month agricultural college course after which he worked on various activities before working and managing the family farm estate for eight years. Following this, the Applicant became the owner operator of a farm for five years, while during the latter two years of this period he put himself through an electrical trades course at TAFE. By the early 1980s the Applicant stated that he was working as a general handyman and later as a research and development officer. Around this time the Applicant related to the Tribunal that his wife left him with two children to raise, he married again and commenced installing electrical systems for a few months prior to working for 10 ½ years as an electrician with the Namoi Flour Mill.
In March 1998 the Applicant stated that he left his job at the Flower Mill because he was unable to continue due to his Scleroderma. During Christmas 1999 the Applicant said he drove a tractor for four weeks.
In describing his medical conditions to the Tribunal, the Applicant described a history of sore fingers in 1993-94; that his fingers tended to ulcerate in the winter months; that he suffers from Raynaud's phenomena; that a blood test in 1996 established a diagnosis of scleroderma; that a barium swallow in late November 1999 demonstrated oesophageal reflex; that he is easily fatigued and needs a lot of sleep.
Further the Applicant described a history of glaucoma over the last three to four years associated with an injury to his left eye as a child and a haemorrhage much later in his right eye. He is reviewed every year by an ophthamologist.
In further commentary on his medical history, the Applicant detailed a history of burning and aching in both knees in 1993-94, which was worse in cold weather, and when his knees were x-rayed in 1996 nothing abnormal was detected.
Similary the Applicant described a history of increasing shortness of breath over the last five to six years, and he now experiences increasing shortness of breath and muscular pain across the chest when he walks for a block and a half.
Further the Applicant has experienced pain in his right elbow for a few years which has caused him difficulty with lifting and carrying heavy goods. However, it was his contention that of late the pain and difficulties with his right elbow appear to be settling.
For his varied ailments the Applicant stated he was being treated with Adalat, 30 mgs a day (60mgs in winter) for his Raynaud's and half a disprin a day and Tazac one tablet twice a day, for his oesophageal reflux.
The Applicant told the Tribunal that he spends most of his day currently mucking around on his 30 acre property, thinking, maintaining machinery, looking after the sheep, growing a few potatoes and pumping water. The Applicant described himself as not a sportsman, not an avid watcher of television, but does listen to the radio and needs large print size for reading.
The Applicant again nominated a significant difficulty with cold and that he used to teach at TAFE, but does not enjoy computer work too much. During his four weeks of tractor-driving last summer the Applicant stated he would work one day on one day off, his day on being of seven hours, with the total number of hours worked in the four week period being 53. Finally the Applicant believed he was well motivated to work, but the effects of his chronic condition seemed to be affecting his ability to do so.
In a letter to the Respondent dated 9 November 1998 (T10, p 85), the Applicant described the following clinical feature of his various conditions
(a)Knees:   pain in his knees after standing at work bench for 90 minutes. Had to sit down for 30 minutes to relieve pain;
prolonged walking causes pain in his knees;
knees ache when temperature below 18C;
increasing difficulty with kneeling because of pain;
pain in knees when walking with a heavy load.
(b)Elbows: difficulty in lifting more than 15 kilograms with one arm; 20 kilograms with two arms all because of pain; difficulty in lifting 10 kilograms above the head again because of pain.
(c)Hands:   unable to do anything when temperatures below 10C or in damp, windy conditions; no feeling in fingers, unable to pick up small objects in winter month experiences pain when operating vibrating equipment.
(d)Vision:   become increasingly difficult to read or see small components.
(e)Fatigue: increasing requirement to rest after lunch, despite sleeping for nine hours at night.

medical evidence:

In a radiological report dated 10 April 1996, Dr Geddes reports that a plain x-ray of both knees showed no abnormality, while an x-ray of the right elbow showed changes suggestive of early osteoarthritis. X-ray of the chest was reported as possible changes suggestive of developing emphysema.
The Applicant in the work and medical details section of his claim listed his disabilities as arthritis, scleroderma and glaucoma (T5, p 49).
In a treating doctor's report dated 3 July 1998, Dr Cooke detailed the Applicant's clinical condition with associated clinical features as:
(a) osteoarthritis with severe pain - long term and deteriorating
(b) scleroderma with Raynauds - long term and deteriorating

Dr Cooke believed that the Applicant was no longer able to work (T6).

In an approved medical practitioner's report dated 26 August 1998, Dr Loeve detailed the medical history of the Applicant and his medical examination and his opinion as to the Applicant's work capacity were as follows;
"On examination, he has a full range of movement in his elbows, he has some tenderness at the left medial epicondyle and the right lateral epicondyle. His knees have a full range of movement with some crepltus of the patella and he has some periungal erythema with his fingers and telangiectasis with calcinosis of all fingertips and loss of sensation over the tips. His digital dexterity is reduced in winter and he cannot pick things up to do with electrical work. His handwriting is good in warm conditions, his grip strength is good in warm conditions, though if he squeezes too hard he gets elbow pain. There is no limitation of movements, though he can't lift and flex his elbow carrying more than 10-15kg of weight. He is right hand dominant. Walking causes pain only when climbing hills, steps and ladders. He has problems with his knees on hills, steps and ladders. He cannot squat and cannot kneel, but has no other problems. Mr Bell's problems are moderate knee arthritis which precludes him from climbing stairs, hills and ladders. This problem would not preclude him from doing any light work in Categories A and B and possibly C. His scleroderma has caused him to have reduced dexterity and so he would be unable to do fine work and he would be unable to work in cold conditions and may have difficulty travelling in winter. These problems combined make it unlikely that he would be able to work full time in any capacity, though he may be able to work part time in controlled ambient temperature in Categories A, B or C, provided it was not required for him to have fine digital dexterity as the calcinosis precludes that. " (T7, p72/73)
In a Health Service Australia medical report, Dr Beng Lim, in undertaking a medical file review considered the Applicant to have the following medical conditions with associated loss or restriction of abilities in home and work activities:
(a) osteoarthritis knee:                 no restriction of walking
has difficulty using a ladder, steps, hills and is unable to squat or kneel;
(b) Elbow pain:  Raynaud's if temperature less than 15C;
Raynaud's phenomenon        Good dexterity, handwriting, grip in warm
in fingers when cold                conditions; unable to lift greater than 10-15
kilograms; elbow movement full.

Dr Beng Lim considered both conditions to be static and assessed an impairment rating of 10 per cent under table 20 of the Schedule 1B Impairment Tables (T8).

Dr Beng Lim considered the Applicant was not fit to work as an electrician, but able to do light work in a controlled warm environment especially in winter. Further Dr Beng Lim opined that the Applicant's impairment neither prevented nor affect his ability to participate in educational or vocational training programs during the next two years.
Dr McKeon, in a medical report constructed from the medical records of the Applicant dated 11 November 1999, notes that the Applicant has scleroderma, suffers form Raynaud's phenomena, a past history of peptic ulcer disease and a continuing complaint of osteoarthritis in both knees. Dr McKeon considered that the Applicant's impairment had a combined assessment of 55 points, comprising 15 points for loss of cardiovascular function, 30 points for loss of ability to use his hands in cold weather and 0-10 points for his knee condition.
Dr McKeon considered the Applicant would be fit for work if he could be provided with a work environment which is indoors, of constant temperature, with no need to go outside and work, which is of a sedentary nature not involving prolonged standing or walking. (Exhibit A1)
submissions:
The Applicant contended that his impairments properly recorded and properly assessed would exceed a combined impairment rating of 20 points. Further the nominated restrictions associated with his condition would on appropriate assessment deem him unfit for work of 30 hours or more per week.
Further the Applicant, in noting that all his conditions were long term and deteriorating, contended that the report of Dr Beng Lim was in error particularly where he reported that earlier examinations had shown the Applicant to have good dexterity in his fingers. Indeed, the Applicant contended the report of Dr Loeve said exactly the opposite. Further the Applicant contended that Dr Beng Lim was in error when he described his conditions as static.
The Respondent contends that the Applicant's medical impairments have been properly nominated as osteoarthritis characterised by pain in knees, elbows and hands and assessed at 15 points under table 20 of the Schedule 1B Impairment Tables; scleroderma characterised by painful fingers and loss of digital dexterity in cold and wintery conditions and no added assessment rating; glaucoma – a condition suffered for some years and requiring annual review and associated with a long term history of trauma to one eye and a haemorrhage in the other and not assessed as the condition has not been properly by documented or assessed; peptic ulcer characterised by no current problems and assessed at nil points; and finally loss of cardiovascular/respiratory function was not a condition existing at the time of claim application and accordingly no impairment rating is warranted.
The Respondent also contends that the Applicant's impairments do not of themselves prevent the Applicant from doing any other work, nor do they prevent him from undertaking educational or vocational or on-the-job training within the next two years. It is the Respondent's contention that the Applicant does not have a continuing inability to work.
consideration and findings:
The Tribunal, in considering this matter notes the following relevant legislation, namely subsections 94(1), in part, (2), (3), (4) and (5).
"94 Qualification for disability support pension
     94(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;
………………….
94(2) A person has a continuing inability to work because of an impairment if
                the Secretary is satisfied that:
              (a) the impairments 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) 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.
94(4) For a purpose 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 of work in the person's locally accessible labour
              market.
94(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.
The Tribunal further acknowledges that subsection 100(3) of the Act is specific in defining the period to which the Tribunal must focus and limit its prime consideration. As a consequence the Tribunal must focus its inquiry upon the impairment status of the Applicant for the period commencing with the date of lodgement of his claim for disability support pension, namely 2 July 1998 and concluding three months commencing one day after the lodgment ('the operative period'). The Tribunal may make use of material and documentation that is dated outside of this operative period, but only in such manner and for such purpose that allows the Tribunal to gain a better understanding of the Applicant's impairments and their consequent restrictions on the Applicant's work capacity during the operative period.
In preliminary observations of issues in this matter, the Tribunal would remark that the Applicant has detailed the effects of his impairments in a precise and consistent manner over time and the Tribunal appreciates the clarity with which it has been done. The Tribunal also expresses some concern at the ambiguity in Dr Beng Lim's report, where in a report, based on file assessment he comments that the Applicant has good dexterity in warm conditions (T8, p 76), as opposed to the statement in Dr Loeve's report that the Applicant has reduced digital dexterity in winter and later 'his scleroderma has caused him to have reduced dexterity and so he would be unable to do fine work.' (T1, p72) Further similar ambiguities and inaccuracies are created in another file report summary at T16, p102 where Dr Loeve's opinions are clearly misrepresented in relation to the Applicant's capacity to undertake full time work.
In turning to the issue of the Applicant's impairments at the time in question, the Tribunal has considered the evidence of the Applicant, the report of the treating doctor, Dr Cooke, the radiological report of Dr Geddes, the medical report of the approved medical practitioner, Dr Loeve and the file review medical report of Dr Beng Lim. As a consequence, the Tribunal finds that the Applicant had the following medical conditions, with the following associated clinical features at the operative time.
(a) Osteoarthritis in both knees:    Pain on walking only when he climbs hills, steps and ladders; pain on prolonged walking or standing, unable to squat or keel.
(b) Osteoarthritis in both elbows Tenderness over right lateral epicondyle and left medial epicondyle. Pain in elbows when lifting more than 15 kilograms or in lifting 10 kilograms above his head.
(c) Scleroderma     (i) Raynaud's phenomena causing reduction of digital dexterity in winter and cold weather, as well as difficulty with fine work. Periungal erythema with his fingers. Telangiectasis with calcinosis in all fingertips. Handwriting and grip strength good only in warm conditions. Loss of feeling in fingers in cold weather pain when operating or vibrating equipment. (ii) Fatigue – increasing requirement to rest during the day.
(d) Glaucoma        History of left eye injury as a child. Haemorrhage behind right eye many years later. Glaucoma diagnosed mid 1990s. Review annually by specialist. Difficulty in reading small print.

The Tribunal would also comment that other conditions were present at the time of the hearing and were also included in Dr McKeon's report of 11 November 1999. These conditions included oesphageal reflux with a past history of peptic ulcer disease and loss of cardiovascular/respiratory function. The Tribunal, while noting the nature of these conditions as at November 1999, concludes that as neither were mentioned in any of the medical evidence at the operative period, the condition were at that time either non-existent and/or dormant as regards serious symptomatology. Further the Tribunal observes that there would be a nil impairment rating under table 11.1 of the Schedule 1B impairment tables for the peptic ulcer/oesophageal reflux as the symptoms were mild and the Applicant has responded to medication. The Tribunal does not intend to consider these conditions any further, as it is the Tribunal's finding, that these were not matter either addressed or pressed during the operative period.

35.The Tribunal, by virtue of the existence of the physical impairments of osteoarthritis knees and elbows, scleroderma and glaucoma, finds that the Applicant satisfied subsection 94(1)(a) of the Act at the operative period.

In considering each of the impairments under the schedule 1B Impairment table, the Tribunal finds the following assessment:
(a) Arthritis in knees and elbows: The Tribunal observes that the Applicant complains of pain on prolonged walking and standing and on climbing hills, steps and ladders and that he in unable to squat or kneel; that he has tenderness in both elbows; and that he has pain in the elbows when lifting or carrying more than 15 kilograms with one arm. The Tribunal finds that these are mild to moderate symptoms, which causes loss of efficiency in daily activities and concludes that the Applicant has a 10 point rating under table 20.
(b) Scleroderma: The Tribunal observes that the Raynaud's phenomena causes the Applicant particular and severe difficulties in winter and cold weather. This includes loss of digital dexterity, numbness of fingers, loss of grip strength, difficulty with writing, loss of feeling in finger tips and pain when operating vibrating equipment.
The Tribunal considers that the effects of the Raynaud's disease are intermittent and generally are precipated by the Applicant's exposure to cold or winter conditions. It is in the Tribunal's opinion appropriate to assess this impairment rating under table 21. In so doing the Tribunal finds that the Applicant has a severity rating of two under table 21.1 with the Applicant's symptoms being severe and distressing, but prevent few every day activities. Self-care is unaffected and independence maintained. The Tribunal finds that the duration of attacks when exposure occurs are prolonged under table 21.2 and that as a consequence the severity level under table 21.3 is D. As the attacks are weather related in terms of cold, the Tribunal is of the view that the Applicant would be affected on more than 100 days a year, and thus under table 21.4, the Tribunal finds that the Applicant has an impairment rating of 20 points.
(c) Glaucoma. The Tribunal notes the presence of this complaint, but in the absence of any detail as to visual loss, the Tribunal can only find a nil rating under table 14 – miscellaneous eye conditions.

The Tribunal, in arriving at the assessment finding of 30 points has paid particular attention to the medical evidence detailed in each of the relevant medical reports and to the Applicants description of the effects of his impairments on his physical abilities. Further the Tribunal considers that Raynaud's phenomena is more appropriately assessed under table 21 being a weather-related episode impairment.
It is the Tribunal's finding that the Applicant satisfied subsection 94(1)(b) of the Act at the operative time.
The Tribunal observes that the treating doctor, Dr Cooke, and the approved medical practitioner, Dr Loeve concluded that it was most unlikely, by virtue of the nature of his impairments, that the Applicant would be able to work, in any full time capacity. Dr Beng Lim considered the Applicant to be no longer fit to work as an electrician, but was able to do light work in a controlled warm environment, especially in winter. Dr McKeon considered the Applicant would be fit for work if he could be provided with a work environment which is indoors, of constant temperature, with no need to go outside and work which is of a sedentary nature not involving prolonged standing or walking.
In considering the Applicant's work capacity, the Tribunal has given much consideration to the medical opinions expressed alone and the Applicant's significant work history and expenses. Further in noting that the Tribunal must confine its opinion to the claim lodged in July 1998, the Tribunal does find that in the operative period the Applicant did not have a continuing inability to work. In making such a finding, it is evident to the Tribunal that the Applicant's work capacity is limited dot a narrow range of indoor activities to ensure the effects of his Raynaud's disease is minimised and that such indoor work activity must reflect an understanding of the Applicant's other physical limitations. Further the Tribunal finds, that again with the same limitations arising form his impairments, the Applicant was at that time able to undertake educational or vocational on-the-job training within the next two years, and that with such training, despite his impairments, he would be likely to do work in the next two years.
In summary, the Tribunal finds that the Applicant's impairment will not prevent him form doing light work in an appropriate environment and that to undertake such an activity in an appropriate environment, the Applicant would benefit from a vocational rehabilitation and training program, which undoubtedly in the operative time he had the capacity to undertake. In comment it is not for the Tribunal to comment on the availability of such employment in such an environment, but to confine its consideration and findings to what the Applicant's impairments allow him to do or not do. Of course, in final comment, as this matter is dealing with events of and circumstances of circa July 1998, a further application, supported by recent medical reports may result in a subsequent finding that reflects upon any deterioration of the Applicant's impairments which may have occurred, and the effect on the Applicant's ability to work.
The Tribunal finds that the Applicant does not satisfy subsection 94(1)(c) of the Act in that the Applicant's impairments of themselves were not sufficient to prevent the Applicant from doing any work within the next two years and the impairments themselves will not prevent the Applicant from undertaking educational, vocational or on-the-job training during the next two years. Further the Tribunal finds that such training may enable the Applicant to do work within the next two years.
determination:
The Tribunal determines that the decision under review be affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed:         .....................................................................................
  Associate
Date of Hearing                17 February 2000
Date of Decision  14 July 2000
Representative for the Applicant           Self represented
Representative for the Respondent        Ms Schuster