BRIAN ZIBELL and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2012] AATA 252

[2012] AATA 252

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4430
Re	BRIAN ZIBELL
APPLICANT
And	SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
RESPONDENT

DECISION

Tribunal	Senior Member Dr K S Levy RFD
Date	1 May 2012
Place	Brisbane

The Tribunal affirms the decision under review.

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

Senior Member Dr K S Levy RFD

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances - Disability Support pension – Physical, intellectual or psychiatric impairment – Impairment Tables – Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94, Sch 1B

REASONS FOR DECISION

Senior Member Dr K S Levy RFD

1 May 2012

INTRODUCTION

1. The applicant, Brian Zibell has applied for disability support pension (DSP) twice, on 28 January 2010 and, subsequently, on 22 March 2011. Both those applications were rejected. Mr Zibell sought a review of the decision of 22 March 2011 by an Authorised Review Officer (ARO) who, on 5 May 2011, affirmed the original decision. The applicant sought further review from the Social Security Appeals Tribunal (SSAT). On 8 September 2011 that Tribunal also affirmed the decision to reject his application for DSP.

2. Mr Zibell now applies to this Tribunal for further review.

   ISSUES

3. The issues to be determined by the Tribunal are:

   1)Does the applicant have a “physical, intellectual or psychiatric impairment”; and

   2)Does the applicant have an impairment of 20 points or more under the impairment tables; and

   3)Does Mr Zibell have a “continuing inability to work”?

   THE STATUTORY LAW

4. The law in relation to Mr Zibell’s claim is governed by s 94 of the Social Security Act 1991 (Cth) (the Act). Relevantly, that section provides:

   94 Qualification for disability support pension

   (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;

   …

   (2)   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

   (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)–the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a)   in all cases–the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b)   in all cases–either:

   (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii) if the impairment does not prevent the person from undertaking a training activity–such activity is unlikely (because of the impairment) to enable the person to do any work independent of a program of support within the next 2 years.

   …

   (5) In this section:

   …

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

   (a)   education;

   (b)   pre-vocational training;

   (c)    vocational training;

   (d)   vocational rehabilitation;

   (e)    work-related training (including on-the-job training).

   Work means work:

   (a)   that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b)   that exists in Australia, even if not within the person’s locally accessible labour market.

   SUBORDINATE LEGISLATION

5. The term “Impairment Tables” in s 94(1)(b) of the Act means the impairment tables which are provided for in Schedule 1B of the Act. The tables which are of relevance to this application are:

   (a)Table 3 – Upper Limb Function;

   (b)Table 8 – Neurological Function: Memory, Problem Solving, Decision Making Abilities and Comprehension; and

   (c)Table 9 – Communication Function – Receptive and Expressive Language Competency.

   EVIDENCE

6. Mr Zibell referred to his previous applications which have been submitted and to reports by various medical practitioners. He also referred to his more recent statement dated 9 February 2012. Mr Zibell appeared in the Tribunal and represented himself. He indicated what he thought were the most important aspects of his case, and in particular:

   (a)He argued that he had a disability since birth. This referred to a problem with his hand, removal of one finger as a baby and a learning difficulty. He has declined the offer of further surgery on his left hand at this stage.

   (b)      He referred to the medical report of Dr Thorpe and said that     his left wrist and          hand should be worth more than 15 points because of the duration of the     disability and the fact that at his age it will continue to deteriorate.

   (c)I note also the report of Orthopaedic Surgeon Dr D Walters dated 14 March 2007, who, at that time, said that the applicant had changed jobs to be a paint-maker and was not having too much trouble with that job. He further stated “… He is managing his present job and not really complaining too much, so … I have suggested to him that we just keep him under occasional observation.”

   (d)Dr Kaduruwane, his General Practitioner, had allegedly told the applicant he should never have entered the workforce.

   (e)       He said that he had X-rays to prove his case.

   (f)He referred to a long standing problem with reading and spelling and said he was a slow learner.

   (g)He was concerned that the Job Capacity Assessors indicated he was fit to do various other jobs; he argued he was not capable of being retrained or even doing the alternative jobs suggested by the Job Capacity Assessors.

   (h)Mr Zibell argued that one of the Job Capacity Assessors did an assessment on him in less than 20 minutes and that, therefore, she could not have done a proper assessment in that time.

   (i)He recalled that Job Capacity Assessor, who is a psychologist, had given him a maths test and other psychological tests but he said that he was not tested for reading which is troublesome to him.

   (j) He pointed to certain inaccuracies in the report such that he had attended with his mother. He stated that his mother had died over 20 years ago. He had a lady as a support person with him during the appointment and the Job Capacity Assessor just assumed it was his mother.

7. There are reports by a Job Capacity Assessor (a registered physiotherapist) dated 16 February 2010; a further Job Capacity Assessment report undertaken by a psychologist dated 27 April 2010; and, on 27 April 2011, a further Job Capacity Assessment was taken by a registered nurse.

   CONSIDERATION

   ISSUE 1 – Is there a physical, intellectual or psychiatric impairment?

8. The evidence shows there is a physical impairment with respect to the applicant’s left hand. He has had this disability since birth. The fact that there is some incapacity is undeniable. The hand disability has been the subject of a more recent report by Dr Michael Thorpe dated 4 April 2011 and a further Job Capacity Assessor’s report by a registered nurse dated 27 April 2011. That report shows, although it is fully diagnosed, treated and stabilised, the condition of his hand and wrist functionality has deteriorated, although he is still capable of full time employment. Some suggested alternative work types with some training or other intervention is suggested in the latter report.

9. In relation to whether there is an intellectual or psychiatric impairment, there was no evidence to point to an impairment of a psychiatric nature. The issue of whether there is an intellectual incapacity is referred to in the applicant’s statement dated 9 February 2012. It seems to have been referred to initially in the report by the physiotherapist dated 16 February 2010. It was also referred to in the psychologist’s reported dated 27 April 2010 and it is there referred to as a learning disability following substantive psychological testing. It is apparent that the report dated 16 February 2010 was completed after that date as it included references to the report of the psychologist dated 27 April 2010 and to the applicant being referred to the Red Cross Employment Service on 30 April 2010.

10. Mr Zibell claims that the psychologist who undertook the report dated 27 April 2010 tested him for less than 20 minutes and argued that this could not possibly be a complete and professional testing program. He was cross examined about that report and he appeared to accept that there was some indication amongst those tests that he did not have a disability in any true sense but, rather, his intellectual capacity was in the range of normalcy. He was asked by Mr Hamilton, for the respondent, why he thought the testing was inadequate and also why he thought he should be entitled to 15 points under the Impairments Tables in relation to his learning disorder. He paused and then said that he did not know why he thought that.

11. The Tribunal also drew the applicant’s attention to the clinical findings in that Job Capacity Assessment report. In particular, there was a full scale IQ (or ability) test which showed that he was in the normal range, albeit in the bottom 30% of adults of his age; his verbal comprehension tests indicated he was in the low-average range and in the bottom 10% of his peers. There was also a test of perceptual reasoning which put him in the high-average range and better than 87% of his peers. In relation to working memory, his results showed he was of average ability and performed better than 37% of his peers; and in relation to processing speed, a test to measure processing of simple or routine visual information, Mr Zibell’s results placed him within the average range and better than 34% of his peers.

12. The summary of that report reveals that the results do not indicate that Mr Zibell has an intellectual disability, although, within the range of abilities measured, he is at the lower end of the scale in terms of understanding verbal information. Mr Zibell also described a normal lifestyle in that: he is self-sufficient; he goes shopping; he drives a car and does minor maintenance such as an oil change on his car; and he has a computer and can play games and use other functions on the computer. His own description of his lifestyle was not inconsistent with the results of the psychological tests of the Job Capacity Assessor. He represented himself at the Tribunal and appeared to have reasonable organisational skills and coped and responded to questions at the Tribunal without difficulty. I make a finding of fact therefore that the applicant does not have an intellectual impairment.

13. Consequently, the applicant has a physical disability but no intellectual disability.

    ISSUE 2 – Does the Applicant have an impairment of 20 points or more under the Impairment Tables?

14. In relation to the physical disability the evidence showed that he is right handed and is able to attend to all needs in his personal life. The left hand has one finger missing and there is pain in his left wrist. He has normal analgesics and anti-inflammatory drugs to help him cope with that.

15. The left wrist is also said to have a congenital abnormality. The condition has been assessed by an orthopaedic specialist, Dr Walters, in 2007. No later report has been obtained. At that time, Dr Walters regarded the wrist as providing some functionality and said it was not normal although he has to deal with some wrist pain. The SSAT found that, on that evidence, an impairment of 15 points was appropriate. However, Mr Hamilton submitted that, to assist the Tribunal, the most recent application made by the applicant and lodged on 28 December 2011, provides a more recent medical report, dated 1 July 2011, which refers to the wrist condition causing arthrosis at the distal radio‑ulnar joint. In addition, Dr Kaduruwane stated that there is pain and minimal movement in the left wrist joint. He also referred to the X-ray showing degenerative changes as well as arthrosis. There is evidence he now requires non-steroidal anti‑inflammatory drugs and minimising movement of the hand has been advised in managing the condition.

16. In terms of impact of this condition on his ability to function, Dr Kaduruwane said that the applicant is “unable to use left hand for physical work due to pain and limited movements”. He has indicated the condition will continue for more than 24 months and over that period it will deteriorate.

17. Mr Hamilton drew my attention to a previous report by Dr Thorpe, dated 4 April 2011, which indicated that there was a major loss of strength and mobility of the non-dominant hand which causes “significant” interference in “hand function”. This is a critical issue as that equates to the issue in Table 3 of the Impairment Tables for 15 points.

18. I did ask the applicant whether he had further and more recent specialist reports. He indicated he did not and that he is on the public waiting list at a hospital on the north side of Brisbane. He stated he has to just wait as required by the hospital system and he is not likely to get an appointment until January next year. Having considered all that evidence, I find that the applicant is a witness of truth and that there is a significant interference with the functionality of his left hand such that it justifies 15 points under Table 3 of the Impairment Tables.  

19. In relation to the question of a learning disorder or whether he could satisfy either Table 8 (Neurological Function) or Table 9 (Communication Function), I find that in relation to Table 8 his comprehension, reasoning and memory are within the normal range and comparable with his peers, although he has some minor difficulties. The descriptions for 10 or 20 points, or higher, could not be justified on the evidence. I therefore find a rating of nil points is appropriate for Table 8. With respect to Table 9, this Table measures communication and language competency in relation to both receptive (processing) and expressive language impairment. The applicant does have verbal functioning at the lower end of the normal range and he described having some difficulty in retaining employment over his working life. However, a nil rating (satisfactory or only minor difficulties with communication) is appropriate with respect to Table 9. This conclusion is consistent with the more formal psychological measures provided by the Job Capacity Assessment by the psychologist using objective measurement scales. It is also consistent with the finding by the psychologist that his learning capacity is within the normal range, acknowledging it is in the lower half of the normal range.

20. The end result is that I find Mr Zibell is entitled to 15 points under Table 3 only. There is therefore a total of 15 impairment points under the Impairment Tables.

21. I note that some reference was made in the statement of facts and contentions submitted by the respondent that hypertension was an issue which also had to be considered. The applicant himself said, however, that he did not understand why that was an issue as,   while he did have hypertension (and had had for many years), this has never been a disabling factor and he did not regard it as being relevant. I accept the applicant’s position in relation to that issue and find he has no disability which would attract a rating under the Impairment Tables for hypertension.

    ISSUE 3 – Has the applicant a continuing inability to work?

22. This refers to s 94(1)(c)(i) of the Act. The provisions of s 94(1) are cumulative and my findings above are that he satisfies s 94(1)(a) in that he has a physical disability but he does not satisfy s 94(1)(b) as he does not obtain 20 points or more under the Impairment Tables. As he does not satisfy s 94(1)(b), it is unnecessary to consider s 94(1)(c) as he cannot succeed in s 94(1) of the Act overall.

    CONCLUSION

23. The decision under review is therefore affirmed.

I certify that the preceding 23 (twenty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD.

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

Associate

Dated 1 May 2012

Date(s) of hearing	7 March 2012
Applicant	In person
For the Respondent	Robert Hamilton, departmental advocate