Connor and Secretary, Department of Family and Community Services

[2003] AATA 592

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 592

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   N2002/1485

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL CONNOR

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO MEMBER

Date 25 June 2003

PlaceSydney

Decision The decision under review is affirmed 

…………………………………

[sgd] Rear Admiral A R Horton
  AO Member

CATCHWORDS

SOCIAL SECURITY – eligibility for disability support pension – Applicant has physical, intellectual or psychiatric impairment – whether impairment is of 20 points or more under the Impairment Tables – whether continuing inability to work

Social Security Act 1991 – section 94, schedule 1B

Social Security (Administration) Act 1999 – schedule 2

REASONS FOR DECISION

Rear Admiral A R Horton AO Member

1.      Mr Michael Connor, the Applicant in this matter, seeks review of a decision of the Social Security Appeals Tribunal (“the SSAT”) on 26 August 2002 which affirmed a decision of an authorised review officer (“ARO”) on 18 June 2002, that he is not eligible for the disability support pension (“DSP”).  The decision by the ARO had in turn affirmed the original decision by an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) dated 3 June 2002 which determined that the Applicant was not eligible.

2.      The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 4 October 2002.  At a hearing before the Tribunal at Gosford on 13 June 2003, the Applicant was self represented and gave oral evidence.  Mr A Zhang, an advocate for Centrelink, appeared for the Respondent.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T- documents”). The Tribunal also took into evidence the following documents:

Exhibit A1Report by Dr I Charlton, General Practitioner, dated 23 August 2002

Exhibit R1Report by Dr I Charlton dated 7 March 2003

Exhibit R2Report by Dr I Charlton dated 21 May 2003

ISSUES

4. The decision of the SSAT was to the effect that the Applicant meets the criteria in section 94(1)(a) of the Social Security Act 1991 (“the Act”) in that he has a physical, intellectual or psychiatric work related impairment (as defined in the Introduction to the Impairment Tables at schedule 1B of the Act, and the criteria in section 94(1)(b) which requires that impairment, of itself, to be of 20 or more points under the Impairment Tables. The SSAT did not accept that the Applicant meets the criteria in section 94(1)(c) of the Act, in respect of a continuing inability to work.

5. At the outset of the hearing, the Respondent conceded that the Applicant met the criteria in section 94(1)(a) and (b). Thus the only issue before the Tribunal is whether he meets the criteria in section 94(1)(c ) in respect of a continuing inability to work.

LEGISLATION

6. Section 94 of the Act defines the qualification criteria for the disability support pension, and states, relevantly:

"94(1) A person is qualified for disability support pension if:

(a) … ;and

(b) …; 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.

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.

94(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.

94(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.

94(5)   In this section:

...

"work" means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b)       ..."

7. Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:

"4. Start day - early claim

If

(a) a person (other than a detained person) makes a claim for a relevant social security payment; and

(b) the person is not, on the day on which the claim was made, qualified for the payment; and

(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim was made, and;

(d)      the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment."

8. Impairment and rating pursuant to sections 94(1)(a) and (b) of the Act has been assessed against the work-related Impairment Tables at Schedule 1B of the Act, an explanation for which is given in the Introduction to the Tables.

BACKGROUND AND EVIDENCE

9.        Mr Connor is aged 43.  He lives at Kincumber on the New South Wales Central Coast with his wife and two teenage children, and has always lived in the general area.    He left school in about year 10, and later sought to gain his School Certificate, but was thwarted when exams were cancelled. He laboured until  approximately  5 years ago, when he gained employment as a driver with Blue and White Couriers, located at Mascot.  He worked long days, travelling to and from the city by train each day. Because of a worsening medical condition he left his employment in mid 2001.  He has not worked since.

10.      In about June or July 2001, his general practitioner of about 15 years duration, Dr Ian Charlton, diagnosed rheumatoid arthritis, a condition that has effected his father for many years.  The only evidence of any medication at this stage for rheumatoid arthritis is that from Dr Baume, Rheumatologist, who indicates he has been prescribed Salazopyrin.  The Applicant stated that he gave up driving in late 2001 as he was taking Panadeine Forte for pain, making it unwise to drive. Dr Charlton referred the Applicant to Dr Baume in December 2001, he again saw Dr Baume in April 2002.  The reports of those examinations by Dr Baume were not available at the hearing having been mislaid by the Respondent and the Applicant having not actioned a request by the Respondent to obtain further copies.  The Tribunal finds this an unsatisfactory situation, but is able to resort to extracts recorded in the SSAT decision.  Dr Baume wrote on 24 December 2001:

“…For about 12 months he has had pains in the shoulders, elbows, wrist, feet and periscapular region…His father apparently had rheumatoid arthritis”

and following the second visit, wrote on 6 April 2002:

“In summary, although I find him difficult to assess, I suspect he does have active rheumatoid arthritis.  Today I have asked him to cease his Salazopryn and I have commenced him on Methotrexate 10 mgs per week plus folic acid 5 mgs per week.  I have warned him of possible side effects”

11.       The Applicant told the Tribunal that he ceased taking Methotrexate, seemingly not too long after being prescribed such medication, as it led to bleeding stomach ulcers and made him sick.  He further said he had taken half strength Methotrexate that had no effect in reducing the rheumatoid symptoms, and in view of the side effects, did not try full strength Methotrexate.  He was very conscious of the warning by Dr Baume that it could have serious side effects.  He has since taken no other medication apart from Panadeine (which he takes about three nights a week), nor has he seen Dr Baume, or any other specialist, since April 2002.  He stated that Dr Charlton had advised him not to work, but at the most it should be limited to one hour a day.  When pressed by the Tribunal, he stated that Dr Charlton had given him no forecast as to the longer-term future in respect of his rheumatoid arthritis, or what, if any, medication, might be considered.

12.      The applicant lodged a claim for the disability support pension on 17 April 2002.  The accompanying Treating Doctors report by Dr Charlton diagnosed rheumatoid arthritis and recorded the opinion that a return to any kind of work would not be likely for more than two years.  Dr D Arad, Health Services Examiner for the Respondent, examined the Applicant on 22 May 2002, recording pain in the lower limbs leading to moderate interference to walking, and pain in the upper limbs giving mild interference, and attributing the conditions to rheumatoid arthritis.  He considered the Applicant fit for full time work of at least 30 hours per week, with limitations on standing, bending and lifting weights.  He further considered that the medical condition did not prevent the Applicant undertaking rehabilitation or training.   

13.      The first report from Dr Charlton available to the Tribunal is that of 23 August 2002 (Exhibit A1) written some twelve months after diagnosis.  As relevant to the issue before the Tribunal, Dr Charlton confirms the diagnosis of rheumatoid arthritis and serious reaction to the “usual treatments” and reluctance by the Applicant to go onto “immunosupressive therapy which can have life threatening side effects”.  He agrees that limiting activities is the best treatment.  On 7 March 2003 at Exhibit R1, Dr Charlton elaborates on this earlier report, noting that “there are occasions when his arthritis flares up causing considerable pain and immobility.  This occurs about every 12 months.  He reports every second day having pain in the shoulders limiting his activity.  Every day he has pain in the right foot”.  He notes that the foot pain prevents the Applicant driving his car.  In respect of returning to work or undertaking training, he says “I would think it unlikely that he will return to his original occupation in the next two years.  The impairment would also make retraining difficult unless he were to find a successful medication regime for his rheumatoid arthritis”. 

14.       The final report by Dr Charlton before the Tribunal is that of 21 May 2003 (Exhibit R2), written to the Respondent.  It takes a somewhat different stance to what had been stated previously, and in its entirety, says:

“Michael continues to be a bit of a mystery as to what to do. 

He has had further episodes of joint pain but on other occasions he has been able to go Go Kart racing with his son and fix cars in the back yard. He argues that he would not be in a position to be a predictable employee because of his illness.  There is some truth to this.

Recently I spoke to his wife who intimated that she may be able to persuade him to return to work at a lower level of physical stress eg car park attendant or consider a trial of therapy.  I am yet to hear back.

On balance I think it would be appropriate for Michael to try a low level of physical activity job and we would be able to see how he manages this.

In the past he has been a good and reliable worker. So if he were not able to manage it would be because of genuine reasons.

I would consider him fit to commence a 30 hour per week low level physical activity job.  ie avoid period of prolonged standing. Max of 5kg lifting.  Opportunity for regular breaks.”

15.      The Applicant has not looked for work since ceasing his driving employment in 2001.  He stated his medical condition was such that he could not return to work, although he would like to do so.  He had no interest in a “desk” job, and would not like it.   He described “constant pain in the right leg”, and for a period had monthly cortizone injections.  These he no longer has.  He stated he has pain in the elbows and shoulders, depending on his activities, and pain at the base of the back which becomes constant “if he does things”.  He can generally move around, but cannot do so once pain starts. He does not sleep well.

16.      The Applicant stated that he could sit for a maximum of about forty minutes.  He is limited in how far he can walk, due to pain in the knee (which was injured in the past), ankle and hip, but can walk a “fair distance”.  He is unable to accept that this can be considered as sufficient to enable him to work.  He can look after himself at home, but can no longer fish or undertake his own car repairs.  As to how he spends his days, he stated he watched television and videos and reads occasionally.

17.      There was no cross-examination by the Respondent.   The Tribunal asked the Applicant whether there were other matters or considerations that should be taken into account, the response being that all relevant information had been presented when responding to the Tribunal’s questions.

FINDINGS AND DECISION

18. The Applicant must meet the criteria in section 94(1)(c) in respect of a continuing inability to work. Section 94(2) amplifies this requirement in that it requires the impairment (rheumatoid arthritis) of itself to be sufficient to preclude any work within the next two years. The impairment must also of itself be sufficient to prevent the undertaking of educational or vocational or on-the-job training during the next 2 years, or in the alternate, if the impairment does not prevent such training, it is unlikely to enable the person to work within the 2 years. The availability of work in the locally accessible labour market or the availability of training is not a consideration vide section 94(3) of the Act. The Applicant cannot benefit from the concession in section 94(4) as he is under 55 years of age. Finally, work is defined as being at least 30 hours per week in Australia vide section 94(5), and training does not include a program specifically designed for people with impairments.

19.      The Applicant is convinced that he cannot return to the work force in any capacity, nor undertake training, because of his medical condition. He has no interest in a more sedentary job than the type he has pursued in the past. Following examination, the Health Services Australia doctor considered him fit in May 2002 to return to work.  The only medical reports are those extracts of Dr Baume wherein he makes no comment as to the Applicant’s ability to return to work, and the three reports of Dr Charlton, his treating doctor.  The final report by Dr Charlton is significant as it clearly reflects the view that the Applicant should return to work, and that he is fit to undertake such work for 30 hours per week, with limitations in respect of prolonged standing and lifting, and the need to have regular breaks. 

20. There is no evidence before the Tribunal, other than that given orally by the Applicant, that suggests he cannot meet the requirements of section 94(1)(c). Accordingly, the Tribunal finds that the Applicant does not have a continuing inability to work or to undertake appropriate training. In reaching that decision, the Tribunal notes with concern that the Applicant seems to have resigned himself to the belief that his medical condition is such as to prevent him working again, and seemingly has little interest in progressing medical solutions in the hope that they will alleviate the long term effects of his rheumatoid arthritis. However, the fact that he takes little medication is in itself, an indication that he is coping well with his impairment, and confirms the view that he has the capability to return to the workforce.

21.      The decision under review, that of the Social Security Appeals Tribunal of 26 August 2002, that the Applicant was not eligible for the Disability Support Pension on 3 June 2002 (the date of the primary decision) is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO

Signed:         Georgie Zuzak         
  Associate

Date of Hearing  13 June 2003
Date of Decision  25 June 2003
Representative for the Applicant    Self-represented

Advocate for the Respondent             Mr A Zhang