Brooks; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1893

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1893

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200601096

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And DARRYL BROOKS

Respondent

DECISION

Tribunal Mr B.H. Pascoe, Senior Member  

Date26 October 2007

PlaceMelbourne

Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal of 11 October 2006 and in its stead affirms the decision of the applicant of 6 July 2006 that the respondent, Mr D. Brooks was not qualified for Disability Support Pension as at the date of his application or within the subsequent thirteen weeks.

(sgd) B.H. Pascoe

Senior Member

SOCIAL SECURITY - Disability Support Pension – assessment of disability – continuing ability to work – decision of Social Security Appeals Tribunal set aside.

Social Security Act 1991 – s 94

REASONS FOR DECISION

26 October 2007 Mr B.H. Pascoe, Senior Member  

1.      This is an application by the Secretary, Department of Employment and Workplace Relations (the Applicant) to review a decision of the Social Security Appeals Tribunal (SSAT) that the Respondent, Mr D. Brooks, is eligible to receive Disability Support Pension (DSP) from the date of his claim, 2 June 2006.

2.      At the hearing the Applicant was represented by Mr T. Noonan, an advocate with Centrelink.  Mr Brooks was unrepresented.  Evidence was given by Mr Brooks and two rehabilitation consultants, Ms L. Natividad and Mr J. Jakupi.  The Applicant tendered two reports from Dr G. Barron, cardiologist who had treated Mr Brooks during 2004.

3.      In this claim for DSP, Mr Brooks listed his disabilities as Heart disease, unstable angina, arthritis-join pain, hypertension, muscle pain (calf) due to medication.  In a treating doctor’s report dated 31 May 2006, Dr Pragaste diagnosed Mr Brooks with ischaemic heart disease from 2004.  He stated that the impact of the condition was exertional angina and that this was expected to persist for more than 24 months.  Dr Pragaste also made a presumptive diagnosis of widespread joint pain treated by analgesics.  A further condition recorded was reflux oesophagitis which was well managed and caused minimal impact on ability to function. 

4.      On 3 July 2006, Mr Jakupi assessed Mr Brooks with 15 points for his ischaemic heart disease and concluded that, without intervention he had the capacity to work more than 30 hours per week within 6-24 months.  He concluded, also, that, with training, he had a capacity to work more than 30 hours per week within six months in light sedentary work.  On the basis of this assessment, the claim for DSP by Mr Brooks was rejected on 6 July 2006.

5.      On appeal, the SSAT set aside the decision and made a finding that Mr Brooks’ heart condition merited a rating of 20 points.  This finding was based on the evidence of Mr Brooks and not on any medical assessment.  No rating was attributed to the joint pain or reflux oesophagitis.  Again on the evidence of Mr Brooks, the SSAT found that he had a continuing inability to work for 30 hours or more per week.

6.      Mr Brooks said that initially he was employed as a factory worker.  He then was involved in a business as a tattooist and body piercing.  Prior to his claim he undertook a course in motor cycle training and, at the time of his claim, was working as a motor cycle instructor averaging approximately 27 hours per week.  In the SSAT hearing, Mr Brooks said that he was then training to qualify to teach Stage 2 of motor cycle training which is a theory stage taught in a classroom rather than his present physical role outside on the training track.  At this Tribunal hearing, Mr Brooks said that he had ceased his involvement in motor cycle training as the new owners of the school were not flexible in allowing him to work limited hours of his choosing.  He said that he was in the process of completing a course in investigating services and had been offered work as a sub-contractor providing covert surveillance services.  He said that, as he did not believe that he could work full time hours, he needed to get a higher hourly rate than was available in motor cycle training.  His aim was to obtain a full investigator business licence and employ others.  He acknowledged that he had sought DSP as the alternative Newstart Allowance would not enable him to work towards establishing a new career.

7.      Mr Brooks said that, after a heart attack in January 2004, he had two blockages corrected by insertion of a stent.  He said that he was told that he had been left with unstable angina and would need to take care.  He said that if he over exerts he suffers significant fatigue later.  He commented on occasional episodes of dizziness but had never actually fallen over.  He said he has good days and bad days and his activity level can depend on the time of day and his energy levels.

8.      Mr Brooks complained also of generalised joint pain, mainly in the hands and lower legs.  He said that his hands swell in cold weather.  He acknowledged that no tests, radiological examination or diagnosis had been undertaken in respect of the condition.

9.      In a report provided to the Applicant by Dr Barron he said that Mr Brooks presented with an acute coronary syndrome in January 2004.  An angiogram demonstrated single vessel disease and a stent was placed in his LAD vessel.  Dr Barron said that there was no evidence of any myocardial damage and, when last reviewed on 15 December 2004, he had no cardiac symptoms.  In June 2004 Mr Brooks had two episodes of chest discomfort which Dr Barron attributed to stress not physical activity.  An exercise stress test at that time produced a maximum METS of 11.9 and a negative stress test to a high workload.   Dr Barron’s report concluded:-

In summary he does have heart disease and when last reviewed there were no symptoms or outstanding issues. His condition was fully diagnosed and appropriately treated.  When last reviewed there were no cardiac symptoms.  As of that time his condition was stable.  There is always a small chance of further cardiac problems long term.  It is true to say that there is no cure for this condition.  However when last reviewed he was quite stable and there were no outstanding issues.  I would thus conclude he has no permanent disability.  There should be no restriction in his daily activities or work.  If any further clarification is required please let me know. 

Mr Brooks accepted the findings of Dr Barron in relation to the stress tests but maintained that the effect of the test was the suffering of extreme fatigue over the following two days.  While he maintained that the views of Dr Barron who last saw him on 15 December 2004 were not relevant to his condition in June 2006, he was unable to demonstrate that there had been any significant change in the symptoms of his heart disease since that date.

10.Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the Act)  The requirements are that:

1.the person has a physical, intellectual or psychiatric impairment as defined under the Act; and

2.the impairment is of 20 points or more under the Impairment Tables; and

3.the impairment has been investigated, treated and stabilised and is likely to continue to at least two years; and

4.the impairment is of itself sufficient to prevent the person from doing any work of at least 30 hours per week within the next two years, or;

5.the impairment is of itself sufficient to prevent the person undertaking educational, recreational or on the job training during the next two years or, if it does not prevent him, the retaining is unlikely because of the impairment to enable him to do any work within the next two years.

Under s 4(2) the qualification period is the date of the application or within 13 weeks from that date.  Consequently the Tribunal is required to find whether Mr Brooks was so qualified in the period from 2 June 2006 to 1 September 2006.

11.     Mr Japuki said that his assessment of 15 points had been based primarily on the history given by Mr Brooks.  He did not have the report from Dr Barron at the time.  He believed that if he had access to that report he would have assessed a zero rating as, notwithstanding the eighteen months since Dr Barron had seen Mr Brooks, the specialist medical opinion was a more appropriate basis on which to rely.

12.     Ms Natividad interviewed Mr Brooks on 2 April 2007 and provided a report dated 12 April 2007.  She had the report of Dr Barron and, primarily on the basis of that report, assessed the heart condition at zero rating.  She said that she had spoken to Dr Pragaste who believed that Mr Brooks’ condition had deteriorated since 2004 but no referral for a specialist opinion had been made.  She was of the opinion that Mr Brooks had a capacity to work for more than 30 hours per week without training within two years and a capacity, with training, to work those hours in a light, semi skilled occupation.

13.     On the evidence of Mr Brooks alone it would be reasonable to assess his heart condition as attracting an impairment rating of 20 points under Table 1 of the Impairment Tables.  This is on the basis of being capable of moderate activities with the exclusion of manual labour and vigorous exercise and a resulting METS level of 4‑5.  However, the report of Dr Barron with no clear medical evidence of any significant deterioration since December 2004 has to cast significant doubt on such assessment.  It is very doubtful that the Tribunal can assess a level of impairment in excess of that demonstrated by medical evidence.  It is clear that Mr Brooks’ condition of joint pain and reflux oesophagitis do not attract any points under the requirements of the Impairment Tables.

14. Of most significance is whether any impairment is of itself sufficient to prevent Mr Brooks from doing any work of at least 30 hours per week within the two years from the assessment period or prevents him from doing such work with appropriate training. Both Mr Japuki and Ms Natividad who are experienced consultants in this area have firm views that Mr Brooks is not so prevented. To a significant degree, Mr Brooks has demonstrated the accuracy of those opinions by, in August 2007, completing a course of training to enable him to work in covert surveillance. This is light sedentary work and there is no evidence that he cannot undertake such work for more than 30 hours per week. On the evidence of the two rehabilitation consultants and the evidence of Mr Brooks at the hearing, I am satisfied that he did not within the assessment period satisfy the requirements of s 94(2) of the Act to qualify for DSP.

15.     It follows from the foregoing that the decision of the SSAT under review should be set aside and, in its stead, a decision affirming the decision of the applicant of 6 July 2006 that Mr Brooks was not qualified for DSP should be made.  

I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of Mr B.H. Pascoe, Senior Member

Signed: Lauren Spragg
  Associate

Date of Hearing  14 August 2007
Date of Decision  26 October 2007
Advocate for the Applicant          Mr T. Noonan, Centrelink Legal Services Branch  
Advocate for the Respondent       Self-represented