Clark and Secretary, Department of Family and Community Services
[2003] AATA 684
•22 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 684
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/52
GENERAL ADMINISTRATIVE DIVISION )
Re WAYNE CLARK Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date22 July 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – disability support pension – whether decision to cancel the benefit properly made – whether applicant has a physical, intellectual or psychiatric impairment of 20 points or more under the Impairment Tables
Social Security Act 1991 ss 94, Schedule 1B
Freeman v Secretary, Department of Social Security (1998) 15 ALD 671
REASONS FOR DECISION
22 July 2003 Mr RG Kenny, Member Background
1. On 31 October 2001, Wayne Clark (“the applicant”) lodged a claim for payment of disability support pension which is a form of income support payable under the Social Security Act 1991 (“the Act”). His claim was granted but, on 27 February 2002, a delegate of Centrelink, on behalf of the Secretary, Department of Family and Community Services (“the respondent”) decided to cancel the applicant’s payment and, on 18 June 2002, that decision was affirmed by an Authorised Review Officer. On 17 July 2002, the matter was further affirmed by the Social Security Appeals Tribunal and the applicant has sought further review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).
2. The applicant attended the hearing but was not represented. Ms T Shea represented the respondent. In evidence were the following:
§exhibit 1 the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents T1–T33);
§exhibit 2 a medical report, dated 23 April 2003, from the applicant’s treating doctor, Dr S Andrew;
§exhibit 3 a medical report, dated 24 June 2003, from Dr Andrew;
§exhibit 4 a facsimile message, dated 7 July 2003, from CRS Australia;
§exhibit 5 a letter, dated 14 July 2003, from Queensland Health.
Issues and Legislation
3. The issue in this matter is whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Act. That provision relevantly reads:
“(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
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
(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.
(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.
(4)For the purposes 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 to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.
(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.
(6)A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.”
4. In accordance with that provision, the Tribunal must determine:
§whether the applicant has a physical, intellectual or psychiatric impairment; and, if so,
§whether he has an impairment rating of 20 points or more which is calculated under the impairment Tables in Schedule 1B of the Act as required by paragraph 94(1)(b) o the Act; and, if so,
§whether he has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.
5. To qualify for a disability support pension, all three of those requirements in section 94 of the Act must be met by the applicant. Further, they must have been met at the time of cancellation of the disability support pension on 27 February 2002.
6. Of relevance in this matter are Tables 4 and 20 of Schedule 1B of the Act which read:
“TABLE 4. FUNCTION OF THE LOWER LIMBS
Rating
Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m. TEN
Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.TWENTY
Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.THIRTY
Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
· requires quad stick, crutches or similar walking aid, or
· is unable to transfer without assistance.
FORTY
Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
TABLE 20. MISCELLANEOUS - … CHRONIC FATIGUE OR PAIN
Rating
Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN
Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage
Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosisHeart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN
Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.
TWENTY
More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTY
Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).
Heart/Liver/Kidney transplants - poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension - severe, uncontrolled
Inoperable, symptomatic and life-threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTY
Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”
Applicant’s Evidence and Contentions
7. The applicant, who was born on 2 March 1956, gave oral evidence to the Tribunal including the following history of his health problems.
8. He was injured in a work-related accident when he fell from a roof. His main injury at the time was to his feet. Since then, he has developed further problems in relation to his upper and lower spine, asthma, hepatitis C and colour blindness.
9. When he lodged his initial claim, the only condition which was referred to was his chronic bilateral foot pain. He said that this was still his major problem but that the other conditions were beginning to impact upon him. Nevertheless, he said that he did have some aspects of these other conditions present when his disability support pension was cancelled in February 2002. He said that there are times when his back problems are worse than they were in February 2002 and that this is dependant upon what he is doing at the time.
10. He conceded that, in coming to the hearing, he had done so by travelling by train and walking to the Tribunal’s premises but he denied advising the Social Security Appeals Tribunal that he had walked for any significant distance whilst waiting for that hearing to commence.
11. He said that he is able to drive a car but that, as he no longer owns a vehicle, he is not in a position to do so. When driving, he prefers to use an automatic vehicle. He said that the last time he drove a vehicle was about one month before the hearing and that he had only driven for the distance of “a couple of hundred yards”.
12. He said that he had made efforts to obtain employment and, in particular, had tried to get a job as a truck driver but had been rejected. He was referred to paragraph 18 of the reasons of the Social Security Appeals Tribunal and said that this had been accurately recorded. There, it is said that the applicant, once he had mobilised himself in the morning and had completed his breakfast, would wash the dishes, tidy up and make lunch for his two sons. It was also said that he had applied for hundreds of jobs since the accident but had found that, with his limited skills and his injuries, no-one would employ him.
13. He agreed that he had applied for a job with an Ipswich bus company but that he was found to be colour blind and so could not be considered. He also said that, with training, he could work in a sedentary position such as in a call centre but added that he had never been offered re-training to gain the appropriate skills.
14. The applicant said that he had suffered an injury to his neck, probably in April 2002, when his car was hit from behind by a motor vehicle which did not stop after the accident. He felt pain in his neck at the time but was away from his home for a few weeks thereafter and did not seek medical treatment.
15. In relation to his back, the applicant said that he had not had a cat scan but that his local doctor had suggested that this be done in the near future. This was in relation to his lower back. He also said that he had not had any surgical procedures on his feet.
Medical Evidence
16. The applicant’s treating doctor, Dr Andrew, has provided reports in relation to the applicant’s conditions. In a report completed for the purposes of the initial claim and dated 31 October 2001, Dr Andrew diagnosed chronic bilateral foot pain and disability and described the clinical features as being chronic pain and inability to stand for prolonged periods. He said that it was a long-term condition likely to persist for at least two years. That was the only condition he referred to in the report (see T9).
17. In a further report, dated 19 March 2002, Dr Andrew made reference to five separate conditions. These were bilateral chronic foot pain and disability, chronic neck pain, asthma, hepatitis C and colour blindness. He described each of them as being stable and being long-term in nature (see T19).
18. In his report of 24 June 2003 (Exhibit 3), Dr Andrew described the main problem that the applicant had in October 2001 as his foot disability but also said that, by March 2002, he had developed worsening of his neck pain which had made it hard for him to sit or stand in one place for extended periods without moving or taking a break. He said that he has also, subsequently, developed worsening lower back pain which has complicated the circumstances even more.
19. In addition to Dr Andrew, the applicant has seen Dr M Balestrieri and Dr G Ballenden. In a report dated 18 February 2002, Dr Balestrieri wrote:
“…He sustained bilateral comminuted calcaneal fractures requiring several weeks in hospital and several months in wheel chair. He was finally able to weight bear using a walking stick and has been fitted with bilateral shoe orthotics because of the loss of foot arches.
Client continues to complain about pain in both feet, predominantly the left, and takes 1-2 Pandeine Forte per day. He has some rigidity in the lateral movement of his feet due to the subtalar post traumatic arthritis. The limitations to standing and walking of 20 mins at a time has greatly reduced his capacity for past forms of work and he is less tolerant of walking or [sic] rough ground or slopes and has difficulty with squatting (but not kneeling).
Client has declined offers of fusing the subtalar joints because orthopaedic surgeon Dr. Brazel had pointed out the risks of possible post operative infection.
Client would be capable of sedentary work such as call centre operation, clerical work, coach or bus driving, some hospitality work etc.
He would benefit from vocational assistance and possible retraining as he is willing to work.”
20. Dr Balestrieri expressed the opinion that the condition was permanent and that, under Table 4 of Schedule 1B of the Act, it would be sufficient to attract an impairment rating of 20 points. He described restrictions on standing and walking of 15 to 20 minutes with an ability to walk on level ground for up to 300 to 400 metres at a slow pace. He referred to difficulty on rough or uneven ground because of the loss of lateral foot movement and said that he was unable to fully squat but was able to kneel.
21. Dr Balestrieri noted that the applicant had a cervical spine condition but made no allocation of impairment ratings for that condition.
22. A medical assessment report was also completed by Dr Ballenden on 23 May 2002. There, he described the applicant’s cervical spine condition as being permanent in nature but as attracting zero points under Table 5.1 of Schedule 1B of the Act. In relation to bilateral foot pain, he described significant levels of pain and limitations on walking and, under Table 4, allocated 20 impairment points. Dr Ballenden also referred to the conditions of asthma, hepatitis C and colour blindness but allocated zero points for each of those conditions under Tables 21, 11.1 and 12 of Schedule 1B of the Act, respectively.
Applicant’s Contentions
23. The applicant submitted that reliance should be placed upon the allocation of impairment ratings by Dr Balestrieri and by Dr Ballenden as being sufficient to meet the threshold of 20 points required under section 94 of the Act and that further reliance should be placed upon the reports of Dr Andrew which indicate that he has an inability to undertake work and that, on that basis, he should be granted the disability support pension.
Respondent’s Contentions
24. Ms Shea submitted that the relevant time for determining the applicant’s qualification for disability support pension was on the date of cancellation. She submitted that conditions additional to those which had been relied upon for the grant of disability support pension in 2001 could be utilised at the time of cancellation if they were permanent, and if they had been investigated, treated and stabilised. She submitted that this was not the case in relation to the applicant’s back condition which had developed recently or his neck condition which had been aggravated by the effects of a whiplash injury which occurred after cancellation.
25. Ms Shea submitted that there was no evidence to indicate that a rating should apply to any of the conditions of asthma, hepatitis C or colour blindness. This meant that the only condition for which a rating was applicable was the applicant’s foot problem and the pain associated therewith. She submitted that the appropriate Table for this was Table 20 rather than Table 4 as used by Dr Balestrieri and Dr Ballenden. She referred to the allocation of 20 points in their respective reports but submitted that this was higher than the evidence would demonstrate.
26. She referred to the condition, at the level of 20 points under Table 4 of Schedule 1B of the Act, as requiring major interference with walking and with climbing, squatting, sitting or kneeling or, in the alternative, pain which restricted walking for 50 to 250 metres at a time or an inability to walk or stand but to be independently mobilise using a self-propelled wheelchair. She submitted that the applicant did not meet those descriptions. Rather, she submitted that the description at 10 points under Table 20 was appropriate and, in that regard, endorsed the approach which had been adopted by the Social Security Appeals Tribunal.
Consideration
27. Initially, as a result of his claim in October 2001, the applicant was found to be qualified by the respondent for the disability support pension. This was on the basis that he met the requirements of section 94 of the Act in that he had the required threshold of 20 impairment points under Schedule 1B of the Act and a continuing inability to work. The decision to cancel his disability support pension was made on the basis that he does have an ability to work and that, therefore, all of the requirements of section 94 of the Act were not met as at the date of cancellation on 27 February 2002.
28. In particular, reliance was placed upon the report of Dr Balestrieri (see T14) where, despite his allocation of an impairment rating of 20 points, he described the applicant as being capable of undertaking sedentary work such as call centre operation, clerical work, coach or bus driving or some hospitality work. This approach was endorsed by the Authorised Review Officer although, at the Social Security Appeals Tribunal, the decision to cancel the disability support pension was made on the basis of its finding that the applicant did not reach the threshold of 20 points required under paragraph 94(1)(b) of the Act. It is that position which Ms Shea has submitted is appropriate in this case.
29. The task of the Tribunal is to consider the matter afresh and this requires a consideration of the appropriate rating to be applied under Schedule 1B for the purposes of paragraph 94(1)(b) of the Act. I accept as correct the submission of Ms Shea that the relevant date for determining the matter of qualification is the date of cancellation. In that regard, I place reliance on Freeman v Secretary, Department of Social Security (1998) 15 ALD 671. I also accept Ms Shea’s submission that all conditions which, as at that date, were fully diagnosed and stabilised in accordance with the terms of Schedule 1B, may be taken into account.
30. I am satisfied that the applicant suffers, for the purposes of paragraph 94(1)(a) of the Act, from physical impairment and that his main concern in that regard is his bilateral foot pain. That condition was present at the date of cancellation, as were a cervical spine condition, asthma, hepatitis C and colour blindness. Of those conditions, the only ones referred to by Dr Balestrieri were neck pain and bilateral foot pain. In relation to his neck, Dr Balestrieri described the range of movement as being within normal limits and allocated zero points under Table 5.1.
31. Dr Ballenden made reference to all of the conditions noted above. In relation to the neck condition, he also described the applicant’s range of movement as being within normal limits and allocated zero points under Table 5.1 of Schedule 1B of the Act. Dr Ballenden also noted that the applicant was manifesting symptoms in his neck which had been caused by the whiplash injury received by the applicant in a motor vehicle accident after the cancellation date and some three weeks prior to his completing the report.
32. Dr Andrew described the condition as being chronic neck pain but I am satisfied, in particular on the basis of the summation of evidence by Dr Balestrieri and Dr Ballenden, that a nil rating is appropriate for this condition under Table 5 of Schedule 1B.
33. In relation to asthma, Dr Ballenden described the condition in the applicant as being well-controlled and stable. This is consistent with the report of Dr Andrew where he described the applicant as being treated with ventolin. The appropriate Table for the allocation of a rating in respect of this condition is Table 21 and I am satisfied that the appropriate rating is nil under that Table.
34. In relation to hepatitis C, Dr Ballenden referred to an absence of symptoms in relation to this condition and he allocated zero impairment points under Table 11.1 of Schedule 1B of the Act. That is consistent with the report of Dr Andrew and I am satisfied that the appropriate rating for that condition is nil under that Table.
35. Dr Ballenden assessed the applicant’s colour blindness and he allocated zero impairment points under Table 12 of Schedule 1B.. No symptoms were described by Dr Andrew and I am satisfied that the rating of nil points under Table 12 is appropriate in this case.
36. In relation to the applicant’s foot condition, Dr Ballenden referred to the report of Dr Balestrieri completed in February 2002. There, Dr Balestrieri referred to the applicant as being able to walk on level ground for up to 300 to 400 metres at a slow pace, although he noted that he would have difficulty on rough or uneven ground because of the loss of lateral foot movement. He considered that the applicant was not capable of standing or walking for prolonged periods greater than 20 minutes because of foot pain. He allocated 20 points under Table 4 of the Schedule and in explaining this, referred to significant lower limb dysfunction.
37. I am satisfied that the description provided by Dr Balestrieri meets the benchmark of 10 points under Table 4 in that his condition causes moderate interference with walking and with sitting or kneeling and that his pain restricts him in walking for some 250 to 500 metres or less. The applicant’s evidence was that he demonstrated the capacity to walk those distances in attending the hearing at the Tribunal and, further, the description meets the terms of Dr Balestrieri’s report who records that the applicant can walk 300 to 400 metres at a slow pace.
38. I am satisfied that he does not suffer major interference with walking or with sitting or kneeling and I note that, at the 20 point level in Table 4, related measures refer to pain which restricts a person to 50 to 250 metres or less at a time or an inability to walk or stand but to be independently mobile using a self-propelled wheelchair. I am satisfied that the applicant does not meet the requirements for lower limb function at the 20 impairment point level under Table 4 and that the appropriate allocation of points under that Table is 10.
39. I have also considered the applicant’s situation under Table 20 of Schedule 1B of the Act and I am satisfied that he does not satisfy the criteria at the level of 20 points under that Table. The medical evidence is that he has symptoms which are moderate to severe leaving self-care unaffected and independence retained with full-time work still possible. I am satisfied that a rating of 15 points is appropriate under Table 20 of Schedule 1B of the Act.
40. The introduction to Table 20 of Schedule 1B of the Act contains the instruction that double-counting of a particular loss of function, by the use of more than one Table, must be avoided. Therefore, the higher of the two ratings of 10 and 15 is the relevant level of impairment in the applicant. This is 15 points.
41. As I am satisfied that the incapacity of the applicant under the Tables in Schedule 1B of the Act is less than 20 points, this means that he does not qualify for payment of the disability support pension as at the date of cancellation. It also means that it is not necessary for consideration to be given to the matters that arise under paragraph 94(1)(c) of the Act relating to his continuing inability to work.
Decision
42. The Tribunal affirms the decision under review.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .......................................................................................
AssociateDate of Hearing 8 July 2003
Date of Decision 22 July 2003The Applicant appeared in person
For the Respondent Ms T Shea, Departmental Advocate
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