Bourke and Department of Family and Community Services - [2000] AATA 1148

DECISION AND REASONS FOR DECISION [2000] AATA 1148

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1943

General Administrative DIVISION      )
           Re      George William Frederick Bourke
  Applicant
           And    Secretary, Department of Family and Community Services
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date22 December 2000
PlaceSydney

Decision      The decision under review is affirmed
  ..................[sgnd]......................
  Ms SM Bullock
  Senior Member
Catchwords
SOCIAL SECURITY - Disability Support Pension - Qualification - Impairment Points

Legislation
Social Security Act 1991 ss 94(1), (2), (5)

Cases
Secretary, Department of Social Security v Pusnjak [1999] FCA 994

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") from a decision made by the Social Security Appeals Tribunal ("the SSAT"), dated 25 November 1999 (T2), which effectively held that the Applicant was not entitled to receive a Disability Support Pension.
The application for review was heard before the Tribunal on 15 November 2000. The Applicant, Mr Bourke, was self-represented and provided oral evidence. Mr Cox appeared for the Secretary, Department of Family and Community Services ("the Department"), the Respondent in this matter.
The relevant procedural history may be summarised as follows:

On 26 February 1998, a delegate of the Department reached a decision rejecting Mr Bourke's first claim for a Disability Support Pension.
Mr Bourke consequently appealed to the SSAT, whose decision dated 14 September 1998, affirmed the Department's original decision.
Mr Bourke lodged a further claim for Disability Support Pension on 21 April 1999.
On 5 July 1999, Mr Bourke was advised by a delegate of Centrelink that his application was unsuccessful (T14).
Mr Bourke then requested a review of the delegate's decision; on 2 September 1999, an Authorised Review Officer ("ARO") advised Mr Bourke that although his claim had been reviewed, his claim remained unsuccessful (T20).
On 8 September 1999, Mr Bourke lodged an appeal to the SSAT.
On 25 November 1999, the SSAT affirmed the decision made by Centrelink. The SSAT held that Mr Bourke's total impairment rating is 10 points under the Impairment Tables contained in Schedule 1B to the Social Security Act 1991 and that he therefore did not satisfy subsection 94(1)(b) of the Social Security Act 1991. The SSAT did not address the issue of whether Mr Bourke had a continuing ability to work as set out in subsection 94(1)(c) of the Act.
By virtue of his application for review lodged on 21 December 1999, Mr Bourke then sought that the Tribunal review the SSAT's decision and hence his claim for Disability Support Pension. The application was heard before the Tribunal on 15 November 2000.

The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents" – T1-T21) and the following exhibits:
Exhibit          Description Date
T1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Various
R1      Respondent's Statement of Facts and Contentions     29 March 2000
R2      Report of Dr E Wassenaar, Medical Adviser     23 March 1998

Issues

The issue to be determined in this matter relates to Mr Bourke's qualification for a Disability Support Pension. It is conceded by the Department and accepted by the Tribunal, that Mr Bourke satisfies subsection 94(1)(a) of the Act in that he has a number of physical impairments.
Mr Bourke suffers from lower back pain, neck pain, pain in his right leg and headaches.
Having thus established that the Applicant satisfies section 94(1)(a), the issue for determination by the Tribunal is whether:

The Applicant has an impairment which is at least 20 points under the Impairment Tables (as required to satisfy subsection 94(1)(b) of the Social Security Act 1991); and
Whether the Applicant has a continuing inability to work (as required by subsection 94(1)(c)(i) of the Social Security Act 1991).

Legislation

The legislation which deals with qualification for a Disability Support Pension is the Social Security Act 1991 ("the Act").
Section 94 of the Act specifically deals with the Disability Support Pension and as relevant provides:
"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;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and…
94.(2)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.
Note:    For 'work' see subsection (5)."

Background

The facts contained below are by way of background information and are not in dispute.

Mr Bourke was born in Australia on 22 May 1941. He is 59 years old.

Mr Bourke is separated and currently has the care and responsibility of his 16 year old daughter, Cindy, who lives with him. He has two other children who live with his ex-wife.

Mr Bourke finished his high school education (year eight) at the age of 16 years.

Throughout his working life, Mr Bourke has been employed in labouring jobs.

His last paid employment was approximately three years ago in the hospitality industry where he worked as a kitchen hand.

Mr Bourke told the Tribunal that he has also tried to learn to use computers and has indeed completed a course in computers run through the then Commonwealth Employment Service ("the CES"); he also commenced a commercial cooking course, however, was unable to complete this course.

Mr Bourke also volunteers as a gymnastics coach with his local Police and Community Youth Club ("the Club"); his other voluntary work at the club includes office duties, which he does two nights per week, and he has been doing this work for the past 13 years. Mr Bourke also used to do volunteer work driving a community bus however, he has recently stopped this activity.

In 1997 Mr Bourke injured himself when he fell during a gymnastics competition. Approximately 28 years ago Mr Bourke was also involved in a motor vehicle accident and has had neck pain ever since.

In April 1999, Mr Bourke applied for the Disability Support Pension (T3).

Mr Bourke's treating doctor at the time of his claim for the Disability Support Pension was Dr G Sobol. Dr Sobol had seen Mr Bourke nine times within the 12 months immediately preceding Mr Bourke's claim, however, Mr Bourke has been a patient at the medical practice where Dr Sobol works since 20 February 1989.

For the purposes of Mr Bourke's claim, Dr Sobol completed a Treating Doctor's Report on 13 April 1999 (T9). Dr Sobol diagnosed the Applicant as suffering from Cervical Spondylosis ("neck pain assoc. with headache" sic). The Doctor further noted that this condition is a long term condition which is likely to persist for at least two years and is both "fluctuating" and "intermittent".

Dr Sobol opined that at the time of his report Mr Bourke was able to return to any kind of full-time work for at least 30 hours per week. When asked to rate Mr Bourke's "Work Ability" (Part B of the Treating Doctor's Report), Dr Sobol indicated that Mr Bourke can carry out most activities "without difficulty". However, the doctor did consider that Mr Bourke may experience some minor limitations with movement and that this may affect his travel to and from work, as well as his movement at work and he also considered that Mr Bourke may have some discomfort manipulating objects for work (T9). Lastly, Dr Sobol indicated that Mr Bourke could lift, carry and move objects with some reduced speed, coordination and/or difficulty. Dr Sobol did not consider that Mr Bourke could benefit from vocational training or rehabilitation.

On 24 May 1999, Mr Bourke was assessed by Health Services Australia. Dr Young, Medical Adviser, completed a Medical Assessment Report at the time of her assessment (T12).

Dr Young reported that the Applicant's medical conditions include pain associated with restricted mobility of the neck, headache and lower back pain.

Dr Young considered, pursuant to Table 5.1 of the Impairment Tables contained in Schedule 1B to the Act, that an impairment rating of ten points is an appropriate rating to reflect that Mr Bourke has lost 50 per cent of the normal range of movement in his neck and that he experiences frequent and constant pain in this regard.

Dr Young also noted that Mr Bourke complains of headaches, however, she found that these headaches rarely stopped Mr Bourke from carrying out his activities and she consequently awarded a nil rating pursuant to Table 21 of the Impairment Tables.

Dr Young then turned to a third condition, namely Mr Bourke's back pain and pain in the right hip. The Tribunal notes that the doctor has not assessed this third condition under the Impairment Tables however, she has noted that any work carried out by the Applicant should "avoid prolonged standing / sitting, no heavy duties" (sic) (T12).

Dr Young concluded that:
"Mr Bourke is fit now for light semi/lesser-skilled work that does not require prolonged standing/sitting or frequent bending, turning or holding of the head in one position – eg. caretaking. A limit of 21-30 hours/week is recommended in recognition of his age and the degenerative nature of his neck problem" (T12, p92).

Evidence of Mr Bourke

Mr Bourke related to the Tribunal that he suffers from the following injuries: constant pain in his neck and left shoulder; lower back pain, "tingling" and other problems with both legs and continuing problems with his left hip. In 1999, Mr Bourke's right hip caused most of his pain, however now his left hip is the more painful. Mr Bourke also stated that he suffers from severe headaches which occur once or twice per week.
With respect to his neck injury, Mr Bourke informed the Tribunal that in 1997 he fell off the rings apparatus whilst participating in a gymnastics competition. As a result of this injury, Mr Bourke claims to have fractured his vertebrae. He stated to the Tribunal that although the hospital at Wagga Wagga has x-rays which show this fracture, he is unable to obtain the x-rays. Mr Bourke described that the pain in his neck is a "pinching" pain, which is there constantly. Furthermore, he cannot turn or move his neck very far and he cannot lift his arms above shoulder height without experiencing pain.
Mr Bourke also described the pain which he experiences in his lower back. He stated that like his neck pain, this pain is also there "24 hours a day". Mr Bourke further stated that he is not on any medication for his back. He related to the Tribunal that he had an allergic reaction to painkillers some 29 years ago, and he consequently refuses to take this form of medication. Mr Bourke does not have physiotherapy but uses heat pads on his back. Mr Bourke also stated that a Dr Riordan told him that he has two small fractures in his back; however, Mr Bourke states that he is unable to obtain any doctors' reports to substantiate this because of the cost involved.
Mr Bourke explained to the Tribunal that the level of pain is so great particularly in his neck, that if anyone inadvertently touched his neck he would retaliate with extreme violence. This indeed had occurred when Mr Bourke's best friend touched his neck and Mr Bourke hit him. The pain is so great, he stated that "I don't know what I'm doing".
Mr Bourke stated to the Tribunal that the cost of seeing medical specialists and obtaining written medical reports has precluded him from providing a complete medical overview of his claimed conditions. Mr Bourke stated that he simply does not have "that kind of money". Mr Bourke stated that he had not sought an up-to-date report from his General Practitioner, Dr Sobol.
Further, Mr Bourke told the Tribunal that in about June 2000 he undertook an operation in Wollongong Hospital on his right hip, namely, he had "balloons" inserted in his right hip to widen/unblock the arteries. This has been beneficial in terms of his ability to walk. However, Mr Bourke still experiences problems with his left hip. Mr Bourke had no medical records of this surgery.
In relation to the examination by Health Services Australia Medical Adviser, Dr R A Young, Mr Bourke stated he did not respect her. She spent very little time talking to him and did not, in his opinion, conduct a very through medical examination.
Mr Bourke stated that he cannot bend and that he experiences discomfort and pain in his back and hips when either sitting or standing for extended periods. However, Mr Bourke did tell the Tribunal that on the day prior to the hearing, he had walked for half a kilometre.
Mr Bourke asked the Tribunal to consider how he could possibly work with all his medical problems. He stated further that no employer would employ a man of his age and physical problems. It is "ridiculous", Mr Bourke stated, to consider that he could undertake duties such as being a caretaker or a doorman, as opined by Dr Young.
With respect to the voluntary work which Mr Bourke undertakes at the Club, Mr Bourke told the Tribunal that this now only involves him supervising in the Gymnasium or in the office, there is no heavy work at all. He can sit for up to 20 minutes or move around as he pleases or make a cup of tea. Mr Bourke enjoys mixing with the young people and keeping his mind active.
Mr Bourke cannot do any housework. He lives in a three bedroom house which has been modified to suit his physical difficulties. He stated that his 16 year old daughter does all the housework including the household shopping. Cindy is in receipt of a Youth Allowance. Mr Bourke further stated that he cannot mow the lawns. Mr Bourke related that he spends a lot of time in a warm bath to help him reduce his pains. Mr Bourke is able to dress himself. He is also able to drive his car although this is becoming increasingly difficult, as the car is heavy to drive. His son has to help with the mechanical maintenance of the car, for example changing the tyres. Mr Bourke can drive for 40 minutes at the most before needing to stop for a rest. Mr Bourke can watch television if he lies down. His headaches restrict the amount of television he can watch.
In response to questioning during cross-examination, Mr Bourke stated that he has only been seeing Dr Sobol (his treating doctor for the purpose of this claim), for approximately the past year. He further stated that he does not go to see Dr Sobol every time that he experiences physical pain but conceded that Dr Sobol would nonetheless have his medical file dating back to 1989, (which is when he first began to go to the medical practice where Dr Sobol works). Mr Bourke maintained throughout cross-examination that he cannot work and that he suffers pain constantly. Mr Bourke maintained his position in this regard despite the fact that Dr Sobol noted that Mr Bourke has only one condition (cervical spondlysis), and stated that he is fit for work. Mr Bourke informed the Tribunal that he is happy with Dr Sobol's treatment although he disagreed with his opinion that he could work.
Currently Mr Bourke is in receipt of a Newstart Allowance. He receives $270.00 per fortnight (after $68.00 has been taken out to cover rental for his Department of Housing home).
Mr Bourke has tried in recent times to obtain employment at a Woolworths Supermarket and a local petrol station. His name is on a waiting list for employment. He has also tried unsuccessfully to obtain light work at the Salvation Army.
Submissions
Mr Bourke reiterated that he is a sick man, that he experiences much pain on a constant basis and that his injuries have left him physically impaired to the extent that he cannot work.
Mr Bourke submitted that in its consideration of his claim, the Tribunal should consider that he does not have sufficient finances to "prove his case" by obtaining medical reports.
In his submissions, Mr Bourke was also very critical of Dr Young from Health Services Australia. He submitted that she did not carry out a proper physical examination and that both her examination and her findings in respect of his working abilities are " very simplistic".
Mr Bourke further submitted that decision-makers and doctors do not have his body and therefore cannot be in a better position than he is himself to determine what work he can and cannot do.
Mr Bourke contended that he cannot work for longer than 90 minutes at a time. He submitted that Dr Young's suggestion that he would be able to work as a caretaker was "unrealistic" and that "Dr Young obviously does not know what a caretaker does". He also rejected the suggestion made by Centrelink that he could work as a doorman; Mr Bourke submitted that at his age and in his physical condition, there is no way he could deal with "young drunks".
Mr Bourke concluded that he did not know what kind of work he could do – he has always undertaken heavy labourer's work and he is no longer capable of doing that. Mr Bourke further submitted that he considers himself a "hazard" to any future employer but says that he has applied for jobs nonetheless, and he has not filled out "disability" on the employment application form because he knows that nobody will consider him for work if he discloses his physical impairments.
Mr Bourke reiterated that he is able to participate in regular voluntary work, submitting that he is not restricted in this work, he is not answerable to anyone and can move around to accommodate for his physical impairments. He is able to take breaks as necessary and volunteering, especially at the club, is also his main form of social activity.
Mr Bourke stated that he knew many people less "disabled" than himself who were receiving the Disability Support Pension and pointed out that he is turning 60 years old next year which, in his submission, means he is "too old to work anyway".
On behalf of the Respondent, Mr Cox submitted that the Applicant fails to satisfy section 94 of the Act in its totality, and that the Applicant's claim for a Disability Support Pension must therefore be refused.
Mr Cox contended that Mr Bourke's physical impairments including: "neck pain, right leg pain, low back pain and headaches", do not attract a total of 20 points pursuant to the Impairment Tables. Mr Cox submitted that an accurate reflection of Mr Bourke's medical conditions is ten points pursuant to the Impairment Tables. In making this submission, Mr Cox effectively relied upon the report of Dr Young from Health Services Australia, and the decision of the SSAT, which held that Mr Bourke fails to satisfy subsection 94(1)(b) of the Act.
In written submissions the Respondent stated that:
"…because the Applicant does not meet the requirements of section 94(1)(b), it is not necessary to look at the eligibility requirement under section 94(1)(c)" (Exhibit R1).

At the hearing however, Mr Cox submitted that "practically speaking", whilst both Dr Sobol and Dr Young state that Mr Bourke does not meet the required 20 impairment points, both doctors also expressed uncertainty as to whether Mr Bourke could undertake full-time work and there is consequently some doubt as to whether full-time work is possible.

Nevertheless, Mr Cox submitted that the legislation only requires that the issue of continuing inability to work be dealt with if the Tribunal were to find that Mr Bourke meets the requirement of obtaining 20 impairment points.
Mr Cox further submitted that if the Tribunal determined that an impairment rating of 20 points is appropriate, then the case of Secretary, Department of Social Security v Pusnjak [1999] FCA 994 is relevant in the circumstances of this case. That is, following the decision in Pusnjak, the Tribunal would be entitled to look at the actual skills and capacity of Mr Bourke in making its decision as to whether he has a continuing inability to work.
Relying on the report of Dr Young, Mr Cox concluded that Mr Bourke is currently fit for light, lesser skilled work, which does not require prolonged standing or sitting nor bending or lifting. He therefore fails to satisfy subsection 94(1)(c) of the Act and the decision under review should be affirmed.
Findings
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the respective submissions of the Applicant and the Respondent and by applying the legislation and relevant case law.
There is no dispute in this matter as to Mr Bourke's having a number of physical impairments and the Tribunal finds that Mr Bourke suffers from neck pain (referred to as cervical spondolysis in the Treating Doctor's Report), lower back pain, right and left leg pain and headaches. Mr Bourke therefore satisfies subsection 94(1)(a) of the Act.
However, for the reasons set out below, the Tribunal does not find that the impairments add up to a minimum of 20 points pursuant to the Impairment Tables and Mr Bourke's claim for the Disability Support pension must therefore be refused.
The Tribunal considered subsection 94(1)(b) of the Act. In applying the Impairment Tables to the conditions claimed by the Applicant, the Tribunal made the following determinations:

Pursuant to Table 5.1, which deals with the Cervical Spine, the Tribunal recognises that Mr Bourke has lost approximately 50 per cent of the normal range of movement in his neck and accordingly finds that ten points properly reflects this loss.
Pursuant to Table 5.2, for the Thoraco-Lumbar Spine, the Tribunal determines that a rating of nil points for Mr Bourke's lower back pain is the appropriate rating. In making this determination, the Tribunal relies on the examination and report prepared by Dr Young of Health Services Australia, which states the Mr Bourke has lost less than 25 per cent of the normal range of movement in his lower back. Dr Sobol makes no report of this condition in his Treating Doctor's Report.

With respect to Mr Bourke's right leg pain, the Tribunal again relies upon the evidence of Dr Young; Dr Young reports that Mr Bourke is able to walk for more than 500 meters and the Tribunal therefore considers that a nil rating pursuant to Table 4 is correct. Furthermore, in making this finding, the Tribunal notes Mr Bourke's own evidence that he was able to walk for approximately half a kilometre on the day prior to the hearing. Mr Bourke also reported that his ability to walk has been greatly improved since he had the "balloons" inserted in his right hip. In these circumstances, the Tribunal does not consider that anything more than a nil rating could be appropriate. The Tribunal notes that Mr Bourke experiences more pain in his left leg. It appears that a procedure similar to that undertaken with the right hip may yet be undertaken with the possibility of reduction in left leg pain. The Tribunal is not in the position, on the evidence available, to assign any rating for left leg pain, particularly as this has not been properly assessed nor has the condition stabilised.
Lastly, the Tribunal assessed Mr Bourke's headaches pursuant to Table 21; the Tribunal determines a nil rating.

In order to assist Mr Bourke in his claim, the Tribunal also considered whether any points are appropriate under Table 20 – Miscellaneous Conditions. In order to be awarded the minimum of 10 points pursuant to this Table, the Tribunal needed to find that Mr Bourke was suffering from "mild to moderate symptoms"; on the evidence before it, the Tribunal could make such a finding. However, care must be taken to use Table 20 only when system-specific Tables such as Tables 5.1, 5.2 or 21 do not allow an appropriate rating. It is important to guard against double counting. In Mr Bourke's circumstances, the Tribunal finds, however that Tables 5.1, 5.2 and 21 adequately deal with his conditions and Table 20 should not therefore be used.
In all the circumstances, the Tribunal finds that Mr Bourke's Impairment Rating stands at 10 points. This rating means that Mr Bourke does not satisfy subsection 94(1)(b) of the Act.
Having thus determined that the Applicant does not meet the legislative requirement set out in subsection 94 (1)(b) of the Act, the Tribunal determines that Mr Bourke does not meet section 94 of the Act in its entirety and hence does not qualify for a Disability Support Pension.
Even if Mr Bourke did meet the required minimum of 20 points from the Impairment Tables, the Tribunal does not consider that he meets subsection 94(1)(c) of the Act. The Tribunal considers that Mr Bourke's medical conditions at the time of claim as assessed by Dr Sobol and Dr Young indicate that he could undertake light duties. In this regard, the Tribunal notes Mr Bourke has tried to obtain employment and placed his name on a waiting list at Woolworths Supermarket and at a local petrol station. He has also tried to obtain work through the Salvation Army.
If Mr Bourke's conditions worsen or new conditions arise, he may apply again and test his qualification for Disability Support Pension taking any such change of circumstances into account. Mr Bourke would not necessarily need to obtain specialist medical opinion if this was prohibited financially, but could have his General Practitioner provide an up-to-date medical opinion as to his medical conditions, as was open to him in the matter currently before the Tribunal.
Accordingly, for all the reasons set out above, the Tribunal finds that Mr Bourke is not qualified to receive a Disability Support Pension. The decision of the SSAT, dated 25 November 1999, is affirmed under section 43 of the Administrative Appeals Tribunal Act 1975.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ................................[sgnd].............................................
  Sharonne Brainenberg, Associate
Date of Hearing  15 November 2000
Date of Decision  22 December 2000
Representative for the Applicant              Self Represented
Representative for the Respondent        Mr Anthony Cox, Departmental Advocate