Burt and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1930

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1930

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600807

GENERAL ADMINISTRATIVE DIVISION		)
Re		RAYMOND ARTHUR BURT

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr K S Levy, RFD, Senior Member

Date8 November 2007  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits & Entitlements – disability support pension – international agreement with New Zealand – whether applicant “severely disabled” for the purposes of the international agreement – applicant had an ability to undertake at least 8 hours work – decision affirmed

Social Security Act 1991

Social Security (International Agreements) Act 1999

Social Security (Administration) Act 1999

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444

REASONS FOR DECISION

8 November 2007   Dr KS Levy RFD, Senior Member  

Background

1.      Raymond Burt (the applicant) is a New Zealand citizen.  He had been granted an invalidity benefit from the New Zealand government prior to his arrival in Australia.  He then came to Australia on or about 26 November 2005.  Some weeks later, on 5 December 2005, Mr Burt lodged a claim for disability support pension with Centrelink.  A report by his treating doctor, Dr Neil Simmons accompanied that application.  He also presented for an assessment by Dr Lee, a medical advisor with Health Services Australia.  On the basis for material available, Centrelink rejected his application for disability support pension on 17 February 2006 (T22 folio 99).  He sought review of that decision by the original decision maker on 12 April 2006 and then by an Authorised Review Officer.  Each of those reviews affirmed the original decision to reject the application.  He then applied for review to the Social Security Appeals Tribunal on 20 September 2006 for a further review.  That application also affirmed the original decision on 30 October 2006.  Mr Burt now appeals to this Tribunal for review of that decision.

Hearing

2.      Mr Burt appeared at the hearing and represented himself.  Mr M Black, appeared as advocate for the Secretary, of the respondent department.

3.      At the hearing the following material was formally taken into evidence:

· Exhibit 1 The T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975

·   Exhibit 2     Job capacity assessment report dated 5 January 2007 

·   Exhibit 3     Job capacity assessment report dated 3 September 2007 

·   Exhibit 4     Schedule 1B Table 1 – assessment of impairment

·   Exhibit 5     Letter from Stonewall Medical Centre 1 May 2007

·   Exhibit 6     Letter from the Ministry of Social Development in New Zealand 20 February 2007 

·   Exhibit 7     Fax from the Ministry of Social Development in New Zealand dated 27 April 2007 (and attachments)

·   Exhibit 8     Letter from Centrelink to Mr Burt dated 14 August 2007

·   Exhibit 9     Coronary Artery surgery diagram dated 22 May 2007

·   Exhibit 10 Medication list for the applicant dated 29 May 2007

· Exhibit 11 Article 1 of the Social Security (International Agreement) Act 1999

Issues and Legislation

4.      The issue for determination in this case relates to the applicant’s eligibility for disability support pension in Australia as at the date of his application; that is, as at 5 December 2005.  Specifically the issue is:

(a)Was Mr Burt “severely disabled” as defined in Article 1 of Schedule 3 of the Social Security (International Agreements) Act 1999 (the International Act) as at 5 December 2005?

5.      To qualify for disability support pension, the Social Security Act 1991 (the Social Security Act) relevantly provides in s 94 that a person will be qualified for that pension if the person has a physical impairment which is assessed at 20 points or more under the impairment tables and is either an Australian resident or has 10 years qualifying Australian residence or has a qualifying residence exemption for a disability support pension.

6. For a New Zealand citizen who can not satisfy any or all of the requirements of s 94 above, an alternative source of entitlement is provided through the Social Security (International Agreements) Act 1999 (“the International Act”). Section 6(1) of the International Act provides that the Social Security Agreement between Australia and New Zealand is effective even where there is inconsistency with Australian Social Security Law. The Agreement in question is contained in Schedule 3 of that Act (the Agreement). The original Agreement having come into force in 1995 and subsequently, a revised Agreement in 2002. The Agreement applies to “disability support pension” (Article 2 (1)(a)(ii)).

7. The applicability of the Agreement limits the Australian disability support pension and the New Zealand invalids benefits to cases where the person is “severely disabled” (Paragraph 2 of Article 2 of the Act). The term “severely disabled” is defined in Article 1, paragraph 1 (l) as follows:

“(l)       “severely disabled” means a person who:

(i) has a physical impairment, a psychiatric impairment, an intellectual impairment, or two or all of such impairments, which makes the person, without taking into account any other factor, totally unable:

(aa) to work for at least the next 2 years; and

(bb) unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program; or

(ii) is permanently blind”

8. The definition of “severely disabled” in that Act is the same as that definition in section 23(4B) of the Social Security Act.

The Applicant’s Case

9.      Mr Burt was born in New Zealand in 1943 and moved to Australia in November 2005.  He had been granted the New Zealand invalids benefit prior to his arrival in Australia. He told the Tribunal that while he has relatives in Bendigo, he predominantly came to Australia for the warmer climate than where he lived in New Zealand.  The respondent’s advocate informed the Tribunal that even if the applicant’s case is upheld, the amount of pension payable in Australia at present would likely be nil as the New Zealand benefit is higher than the amount he would be entitled to in Australia.  Mr Burt’s response was that acknowledgement of entitlement would likely enable him to have a concession card and, in any event, the amount of the Australian pension may, in the future, be higher than the New Zealand benefit.

10.     Mr Burt’s case was that he has suffered from an ischaemic heart disease since 1993.  Various medical records from New Zealand were available to show the basis upon which the New Zealand invalids benefit was granted.  Shortly after lodging the initial claim for disability support pension on 5 December 2005, Mr Burt filed a treating doctor’s report dated 8 December 2005.  This report by Dr Neil Simmons in Brisbane described that Mr Burt had “reduced endurance – energy levels due to angina and medication” (T11 folio 67).  Dr Simmons’ report described the current impact of the applicant’s condition as expecting to exist for more than 24 months and that it would remain unchanged throughout that period.  He noted also that the applicant had “moved from New Zealand 2 weeks ago” (T11 folio 71) but made no further comment on the limitations on the applicant, apart from indicating the medications which he was then taking.

11.     A further report by Dr Simmons dated 1 May 2007 describes the applicant as having dyspnoea on exertion.  He described the applicant as being short of breath when doing vacuuming and house work, and when walking at an average pace.  He did not get dyspnoea when dressing and washing dishes or doing light house work.  He noted that the applicant was (then) awaiting coronary bypass graph surgery at Prince Charles Hospital.  His assessment of the applicant’s metabolic rating was that he was symptomatic at 3 – 4 mets of activity, which in his view, equated to a rating of 30 points on the impairment tables.  He stated that Mr Burt was unable to perform any work activities due to his medical condition as at 2 December 2005.  That opinion was given, having seen medical reports dated 19 December 2005 and 5 January 2006.

12.     It is noted that Mr Burt has since had bypass surgery. 

The Respondent’s Case

13.     The respondent argues that an assessment made of the applicant by Dr J Lee, a medical advisor with Health Services Australia, showed that on examination of the applicant on 11 January 2006, there was no dispute as to the applicant’s ischaemic heart disease and the fact that it was a permanent condition.  However her report notes that the impact on the applicant’s functional capacity was that he had “no chest pain; short of breath with exertion – eg climbing hills – avoids stairs, walking quickly to catch the train, bending, vacuuming, mowing; able to self care, drive, do shopping and light gardening” (T15 folio 79). Dr Lee stated that the applicant had symptoms at 4 – 5 mets and that she assigned an impairment rating of 20 points for the applicant’s heart condition. She concluded also that the applicant could perform light duties but he would require substantial re-training (T15 folio 92).  Dr Lee suggested suitable work would include office work, bookkeeping or telemarketing/phone work (T15 folio 83).

14.     In examination in chief, Dr Lee noted that the applicant had a 99% stenosis (that is 99% of the opening had narrowed) in 1994.  However, the record showed that he had a 90% stenosis in 1996.  Dr Lee said that while that might have shown a small improvement in the amount of blood which could flow, it was not regarded as significant.  However she went on to say that does not correlate to a person’s work ability.  She referred to the work capacity of the applicant in 2005 and said that she considered he had a capacity for lighter, more sedentary work, although he would not be suitable for more moderate levels of exertion.  She clarified this by saying in her opinion, the applicant would be suitable for a “sit down” job such as office work, for example, bookkeeping or phone work or telemarketing.  She did not have access to the New Zealand cardiology reports when she conducted her assessment. 

15.     Dr Lee also said in response to a question by the Tribunal that it is now 4 months post surgery and the applicant’s condition may have changed.  There may have been some improvement in his condition and that further updated reports may be prudent. 

16.     Evidence was also given by Mr Steven Locke, a registered psychologist with work solutions from Health Services Australia. He referred to an initial report undertaken by Ms Ruth Bradbury. A subsequent report was then prepared by Mr Locke.  He is a clinical psychologist and had access to the reports of Dr Lee, Ms Bradbury, Dr Simmons and the SSAT decision.  He concluded that the applicant was able to work at the time of the application and the applicant could do 8 – 14 hours per week. He suggested a realistic assessment was probably at the lower end of that range, at about 10 hours per week.  He emphasised however, only light sedentary duties would be appropriate for his condition and age.  In preparing the report he also took advice from Dr Toft, a medical supervisor with Health Services Australia. 

Other Evidence

17.     Mr Burt told the Tribunal that he finished full time employment in January 1997 in New Zealand.  He was then on unemployment benefits for about a year before he secured a job at a primary school.  He was required to empty rubbish bins and pick up rubbish around the playground, rake leaves, trim shrubs and open and close the school at the start and end of the day.  The amount of work involved was about 8 hours per week but increased to 10 hours per week after about 12 months because of his difficulty in doing the physical work.  He informed the Tribunal he then got a position with the local council and he looked after the rose beds and performed pruning and other similar duties.  This was a casual job and lasted until February 2002 when the applicant said he was no longer fit to work.  He was subsequently tested for invalidity benefit and was granted that benefit while in New Zealand and prior to his coming to Australia. 

18.     Medical evidence includes a letter dated 13 November 2006 by Dr Peter Tesar, a cardiac surgeon with the Prince Charles Hospital.  He described the applicant’s condition in a letter to another doctor as being “… a mild left main stenosis, but critical coronary artery disease in the LAD and his diagonal system, and the right coronary artery”.  That letter indicates that the applicant had agreed to coronary bypass surgery at that date which has since been carried out.  

19.     There is also a letter from a treating doctor, Dr Inga Atrens of the same address as Dr Simmons.  This report is dated 2 February 2007.  She described at that date, that the applicant was awaiting coronary artery bypass graph surgery and had symptoms where exertion was concerned.  In particular, she said that he had “difficulty with work that involves lifting arms” and “difficulty with fast walking/stairs.” He also suffered from depression as a result of the condition.  She said the current impact on the applicant’s functional ability at that date would be likely to exist for more than 24 months “if not treated with surgery”.  However, she said within the next 2 years, Mr Burt’s ability to function was expected to “somewhat improve” “if treated with surgery and medications”.

Consideration

20.     I have taken into account all of the legal and factual material available to the Tribunal in making a determination in this matter. 

21. Mr Burt satisfies some of the requirements of s 94 of the Social Security Act but he is not an Australian resident, which is a requirement of s 94(1). That term is defined in s 7(2) which requires that a person:

“(a) resides in Australia; and

(b) is one of the following:

(i) an Australian citizen;

(ii) the holder of a permanent visa;

(iii) a special category visa holder who is a protected SCV holder.”

Mr Burt does not satisfy that definition and therefore does not satisfy s 94(1).

22. However, he is entitled to be considered under the Agreement at Schedule 3 of the International Act. If he is “severely disabled” as defined in Article 1(l)(i), then he would be entitled to disability support pension in Australia. The definition of “severely disabled” requires that Mr Burt demonstrate he has a physical impairment which makes him totally unable to work for the next 2 years (without taking into account any other factor); and he must be unable to benefit within the next 2 years from participation in a program of assistance or a rehabilitation program. These requirements must be assessed as at 5 December 2005, or within a period of 13 weeks starting immediately after the day on which the claim was made. The authority for that strict assessment is contained in sections 41 and 42 of the Social Security (Administration) Act 1999 and also Schedule 2, sub clause 4(1), of that Act. 

23. It is clear therefore that the 2 limbs of the definition of “severely disabled” must both be satisfied as at 5 December 2005 in respect of Mr Burt. In relation to the first limb of that definition, he must have a physical, psychiatric or intellectual impairment or 2 or all of such impairments, to make him unable to work for at least the next 2 years, without taking into account any other factor. I note at the outset in considering this limb of the definition of “severely disabled”, the test under the Agreement is a stricter test than for those under s 94(1) of the Social Security Act, which requires a person to establish a continuing inability to work. “Work” in s 94(5) of the Social Security Act means work “… at least 15 hours per week on wages that are at or above the relevant minimum wage …”. However “work” for the purpose of the definition of “severely disabled” in the Agreement means:

“(a) doing any work for 8 hours a week or more for the next 2 years, and

(b) benefiting from any training, education or rehabilitation to the extent of being able work at least 8 hours a week”

(Guide to Social Security Law at 1.1.S.110).”

24.     In assessing the claim as at 5 December 2005, it is apparent the applicant was then approximately 62 years of age and had a cardiac condition.  The respondent submits that the applicant’s claim at that date revealed that his condition did not prevent him from sitting, driving a car, using public transport, using everyday appliances, reading, writing, speaking and interacting with others.  He said he could “attend work or other appointments as long as I take it easy”.  He could communicate effectively and manage his own personal affairs as well as take care of himself.  He had limitations with his “shortness of breath” if he had to stand for long periods, or walk up and down stairs, or lift heavy objects. He also had some problems with hearing, concentrating and remembering. 

25. The evidence of the applicant about his condition as at 5 December 2005, is claimed to be such that he was not capable of working. He referred to the New Zealand government granting him an invalidity benefit. While much of the medical evidence to be taken into account is the same, the legal definitions and requirements under the International Act is quite stringent and not the same as the New Zealand considerations, and nor is it the same as the requirement to qualify under s 94 of the Social Security Act. As outlined above, the requirement is more strict under the Agreement by virtue of the definition of “work”.

26.     The applicant referred also to medical evidence from 1993 and 1994.  It is clear that there is medical evidence from that time pointing to his condition. However, it is over 10 years old as at the date of his claim for disability support pension in Australia and I regard that as remote.  Even if one takes it as an indicator of the extent of his condition at that time, the respondent points to the report of Dr Ikram of 11 October 1993 where it is noted that “to the extent that he (the applicant) has exerted himself there is no chest pain” and “he is not on any medication apart from one tablet of aspirin daily and his nitrolingual spray which he has not required” (T39 folio 133).  Dr Ikram also noted that Mr Burt would “almost certainly require coronary angiography” (T39 folio 134).  Dr Bridgeman noted in his report of 16 February 1994 that the applicant would probably require cardiac artery bypass graphing (T39 folio 129) but he also noted at that time that the applicant “… hardly ever suffers from angina and seldom uses his nitrolingual spray” (T39 folio 132).

27.     More proximate evidence is included in the reports of Dr Simmons and Dr Lee.  Dr Simmons completed a report within 2 weeks of Mr Burt’s arrival in Australia and undoubtedly had access to the previous medical records of New Zealand.  He concluded that Mr Burt was not capable of working.  Dr Lee on the other hand gave evidence at the Tribunal hearing and was cross-examined.  She works for Health Services Australia and has done so since 2001.  In the past 6 years (approximately), she told the Tribunal that she specialised in medical assessments and has undertaken assessments for Centrelink in relation to newstart allowance, disability support pension, migrant visas, fitness for work, fitness to join the Australian Defence Force etc.  Dr Lee explained her method of assessing Mr Burt and her assessment of his impairment rating of 20 points.  She described all the activities he was capable of doing and indicated that Mr Burt had a 4 – 5 met level. This then equated to an impairment rating of 20 points.  She then also discussed the stenosis from which Mr Burt suffered and gave evidence that it does not correlate to his working ability.  In her opinion, his work capacity in 2005 was that he could undertake lighter more sedentary work, particularly “sit down” work such as office work.  His own treating doctor, Dr Atrens reported on 2 February 2007 (that is about one and a quarter years after the date of the application but prior to the applicant’s coronary bypass surgery) that although he had some anxiety and depression, he had “difficulty with work that involves lifting arms” and “difficulty with fast walking/stairs”.  Her report which indicated that his condition may “somewhat improve” ”if treated with surgery and medications” is consistent with Dr Lee’s evidence that his present condition should perhaps be reassessed with updated reports. 

28.     However, for the purposes of assessing this application as at 5 December 2005, Dr Lee’s report is to be preferred over that of Dr Simmons.  That report is approximately contemporaneous with the application by Mr Burt. Also, Dr Lee, whilst not a specialist, has the benefit of extensive experience in conducting more detailed analyses and reports about work capacity assessments.  Mr Burt’s own application, together with the report of Dr Lee which shows that Mr Burt at the time of the application had “…no difficulty with self care, drove a car, did shopping and light gardening”, would seem to support Dr Lee’s opinion that the applicant was capable of performing light duties, even if he required re-training.

29. The standard to be applied to the definition under the Agreement requires only that an applicant demonstrate he could do any work for 8 hours a week or more for 2 years from that date (as opposed to 15 hours per week under the definition in s 94 of the Social Security Act). In other words, 8 hours per week would require work on an average of one and half hours per day of light sedentary work. Dr Lee’s opinion, together with the applicant’s own statement in his application, is inconsistent with the capacity required under the definition of “severely disabled” for the purposes of the Agreement.

30.     I therefore find that Mr Burt is not “severely disabled” for the purposes of the first limb of that definition, that is, that he is not prevented from doing work for a minimum of 8 hours per week for 2 years as from 5 December 2005.

31.     The second limb of the definition of “severely disabled” requires that, even if one took the view that given his age and condition that, without taking any other factor into account, that he was not able to work for the 2 year period as at 5 December 2005, he still needed to show that he would be unable to benefit within that 2 year period from participating in a program of assistance or a rehabilitation program.  This would require that he could not undertake any training or perform any work of the type suggested by Dr Lee and for up to one and half hours per day on average over that period.  This requirement reflects the purpose of the legislation; that is, that a person must show they would not be able to do any work, rather than merely work for which they may have had training or experience.  The respondent submitted that “it involves consideration of whether the claimant has an impairment which of itself, considered in isolation from other matters that may influence his attitude to working, prevent him from undertaking work that he is presently able to do without re-training, or any training that would give him the skills to undertake any other work within the next 2 years (Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 per Drummond J).”

32.     Dr Lee referred to the applicant’s capacity to do light, sedentary work.  She also suggested he may require considerable re-training.  Mr Locke, in his evidence also concluded that the applicant could perhaps do 10 hours work per week of a light sedentary type.  He said this might include clerical, typing, using checklists, or doing phone work.  Mr Locke told the applicant in cross-examination that in preparing his report he had access to the applicant’s angiograms and the diagnostic report from the Prince Charles Hospital (T52 folio 158).  He also discussed the case with Dr Toft before completing his report.  The type of training or rehabilitation for individuals depends on discussions with an occupational therapist, but Mr Locke stated that the type of training available would benefit people such as Mr Burt.  When the Tribunal asked whether these were appropriate for people even of Mr Burt’s age he said “yes absolutely – my organisation assesses 2000 people per week”.  I note Mr Locke suggested work for Mr Burt would be appropriate for 8 – 14 hours per week and probably at the lower end of that range at about 10 hours per week.  Ms Bradbury’s report, on the other hand, suggests that Mr Burt might be able to work 15 – 22 hours per week with vocational rehabilitation and further assistance but said he should be capable 8 – 14 hours per week “after doing some brief training and job search or basic computer skills”  (Exhibit 2). I note also Dr Lee suggested that he might be able to do 30+ hours per week with educational training, vocational training or on the job training (T15 folio 83).

33.     I note the respondent’s submissions that Dr Simmons’ report declaring Mr Burt would be unable to perform any work activities, is inconsistent with Mr Burt’s own description in his application form, as well as the information he provided to Dr Lee.  Mr Burt denied that at the hearing.  He also denied that he had told the SSAT that he “… could undertake a type of work which allowed him to sit down during the job” (Paragraph 22, T2 folio 8).  He attempted to moderate that evidence at the hearing and said that he had never stated categorically that he could undertake a sit down job but said that “perhaps he could do a sit down job” – and that would need testing to see how many hours he could actually undertake such a job.  I find that taking Mr Burt’s own evidence, together with that of Mr Locke and Dr Lee, that he could undertake at least 8 hours work per week and/or undertake retraining for that purpose.

34.     I therefore conclude that Mr Burt also cannot satisfy the second limb of the definition of “severely disabled” as provided under the Agreement.  That is, there is not sufficient evidence to show he could not undertake retraining for the purpose of attaining a sedentary job for at least 8 hours per week. It may be that updated medical reports and the fact that he is now 64 years of age may be assessed differently now, but as at 5 December 2005, the strict requirements of the Agreement are not satisfied by Mr Burt under either limb of the definition of “severely disabled”.    

35.     The decision under review is therefore affirmed. 

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Levy, RFD, Senior Member

Signed:         .....................................................................................
  S. O’Grady, Associate

Date of Hearing  11 September 2007
Date of Decision  8 November 2007
The Applicant appeared in person  
Respondent  Mr Black, a departmental advocate