Cook and Secretary, Department of Family and Community Services
[2004] AATA 1277
•2 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1277
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/229
GENERAL ADMINISTRATIVE DIVISION )
Re JUSTIN COOK Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Mr SC Fisher, Member Date2 December 2004
PlaceBrisbane
Decision The Tribunal decides to affirm the decision under review. ...................[Sgd]........................
SC Fisher
Member
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – application to review cancellation of disability support pension - whether applicant’s impairment attracts 20 impairment points – condition not stabilised – unable to assign impairment rating – decision under review affirmed
Social Security (Administration) Act 1991, Schedule 2
Social Security Act 1991, s94Secretary, Department of Social Security and Murphy (FC 980809, Unreported, Federal Court of Australia, QG205 of 1997, 29 June 1998, Drummond J)
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248, (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Secretary, Department of Family and Community Services v Michael [2001] FCA 1811, (2001) 67 ALD 321
Simpson and Secretary, Department of Family and Community Services [2003] AATA 1127
Freeman v Department of Social Security (1988) 15 ALD 671
Kitanovski and Secretary, Department of Family and Community Services [2004] AATA 301
Esho and Secretary, Department of Family and Community Services [2004] AATA 1118REASONS FOR DECISION
2 December 2004 Mr SC Fisher, Member Introduction and Background
1. At all material times, Mr Justin Cook (the applicant) was in receipt of a disability support pension payable by Department of Family and Community Services (the respondent). The respondent granted the applicant disability support pension in 1994 on the basis that he was assessed as having an impairment rating of 20 points under the Impairment Tables for pain associated with crush fractures of the vertebral bodies.
2. On 10 November 2003, a delegate of the respondent made a decision to cancel the applicant’s disability support pension. The backdrop to this decision was that Centrelink initiated a review of the applicant’s circumstances in order to test his continuing eligibility for disability support pension. Internal reviews comprising reconsideration by the original decision maker and an Authorised Review Officer were unsuccessful and did not achieve for the applicant a favourable review of the 10 November 2003 cancellation decision. External review by the Social Security Appeals Tribunal failed also to secure the applicant a decision in his favour. This led to the applicant seeking review of the decisions below by application to this Tribunal which was received on 31 March 2004.
Jurisdiction
3. In a procedural sense, the Tribunal has jurisdiction in this appeal by virtue of Part 4, Division 5 of the Social Security (Administration) Act 1999 (“the Administration Act”). In a substantive sense, the merits of this appeal are governed by the Social Security Act 1991 (“the Act”).
The decision under review
4. The decision under review is a decision made by the respondent on 10 November 2003 to cancel the applicant’s disability support pension.
The Role of the Tribunal
5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (FC 980809, unreported, Federal Court of Australia, QG205 of 1997, 29 June 1998, Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601.
The Material Before the Tribunal
6. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Centrelink letter of 10 November 2003.
Exhibit 3Centrelink letters of 19 July 2001, 23 July 2001 and 27 July 2001
Exhibit 4 Submissions of the applicant dated 7 October 2004.
7. In addition, the Tribunal had regard to an undated and unsworn handwritten statement of the applicant.
Evidence
8. The applicant gave evidence in person. The Tribunal accepted that the applicant was honest. There were no issues of credit in this appeal. The applicant tendered correspondence between Centrelink and himself, which the Tribunal took into evidence as Exhibits 2 and 3. In addition, the Tribunal took into evidence the applicant’s outline of submissions, which were quite comprehensive (these became Exhibit 4). The applicant represented himself.
9. The gist of the applicant’s oral evidence to the Tribunal can be summarised as follows:
A.The applicant described his earlier work and medical history.
B.The applicant read closely from his written submissions.
C.The applicant said that the Health Services Australia doctors did not take sufficient note of his long-term history of chronic and entrenched back pain. The applicant said that these doctors didn’t take sufficient note of earlier medical evidence. The applicant said that when he was reviewed by the Health Services Australia doctors, the answers he gave to questions depended upon how he was at the time and how his mental or emotional state was at that time.
D.The applicant said that he is low back pain gives him problems “all the time”. The applicant said that on a pain scale of 1 – 10, he generally has pain in the region of 4.
E.The applicant said that his pain is easily aggravated and that it varies. He said that when his back is “not loaded”, he manages “alright” with the pain. The applicant said that the pain is worse in winter than in summer.
F.The applicant said that he is prepared to work in some capacity, but it could not be a full-time job where he is at the mercy of the requirements of an employer.
G.The applicant said that when he teaches swimming, he controls the regime. He said, however, that he has no control over the amount of casual work he would receive as a swimming coach.
H.The applicant said repeatedly that he had no control over when he might re-injure himself were he to work.
I.In relation to his gastro-oesophageal reflux disease, the applicant said that this is mostly controlled by medication (but not always controlled with medication, as stated by Health Services Australia).
J.In his evidence-in-chief, and also in cross-examination, the applicant said that he could cycle for about 15 kilometres per day on flat ground and swim for half a kilometre but then he would experience a burning sensation in his lower back afterwards.
K.In cross-examination, the applicant said that he could work as a swimming coach supervising a pool.
L.The applicant said he did not know whether he could do any sedentary work such as sales jobs especially if he is expected to bend over. The applicant said that he only gets jobs if he hides his medical history from his potential employers.
M.The applicant said that he does not shirk heavy work. He considers that he is only fit for light duty work, which does not come along all that often. The applicant said that there is really no training for him in reality.
10. The respondent lodged documents T1 to T17 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. The respondent was represented by Ms Joy Hamilton, a departmental advocate. The respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal. The respondent did not call any evidence.
11. The Tribunal considered carefully all of the documentary and oral evidence before it. The Tribunal took into account especially the applicant’s written submissions.
Medical Evidence
12. The Tribunal reviewed the medical evidence before it as follows.
Medical Evidence Provided By The Applicant
13. The medical evidence provided by the applicant to the Tribunal is summarised as follows:
(a)The applicant’s treating doctor, Dr Mark E Smith, provided a medical report on 10 June 2003 which recorded a diagnosis of “multiple back fractures. New fractures 31 January 2002.” The date of the onset was said to be 8 January 2002 and the date of diagnosis was said to be 8 January 2002.
(b)The applicant’s treating doctor, Dr Mark E Smith, provided a second medical report on 8 January 2004. Dr Smith provided a diagnosis of “back fractures T10, T12, L2, T11, L1. 2d (??) osteoporosis” (to the extent that the Tribunal is able to decipher Dr Smith’s handwriting). The date of onset was described as “initially 1984” and “latent 2002”. The date of diagnosis was confirmed as 2002. Dr Smith stated that this condition is likely to persistent for more than 24 months. Dr Smith also provided a diagnosis of “asthma”.
(c)The applicant’s medical records from the Princess Alexandra Hospital, Brisbane, as at 21 January 2004 were also in evidence before the Tribunal as part of Exhibit 1 (Folios 111 – 210).
Medical Evidence Provided By The Respondent
14. The medical evidence provided to the Tribunal by the respondent is summarised as follows.
15. Dr E Nicoll, Medical Adviser, Health Services Australia, Brisbane, in a Medical Assessment Report dated 31 October 2003 diagnosed the following conditions in respect of which impairment ratings as tabulated below were given:
Condition Impairment Table Permanent/Temporary Impairment Rating Asthma 21 Permanent Nil Multiple crush fractures new # 31/1/02; 1984 MBA (T10, T12, L2) 19 Temporary Not assigned Back pain associated with past crush fractures and osteoporosis 5.2 Permanent 10 Gastro-oesophageal reflex disease 11.1 Permanent Nil 16. Medical Assessment Reports dated 30 March 2001 and 17 November 1998 were in evidence before the Tribunal as part of the T – documents. The Tribunal did not give a great deal of weight to these reports because of their age and also because of the fact that they pre-dated the decision under review by an appreciable length of time. In any case, the 17 November 1998 Medical Assessment Report by Dr Ephraums, Medical Adviser, Health Services Australia, diagnosed “low back pain” and assigned an impairment rating of 20 points under Table 20. The condition of asthma attracted a nil impairment rating. The Medical Assessment Report of Dr Hadwen, Health Services Australia dated 30 March 2001 diagnosed “low back pain.” An impairment rating of 15 points was assigned to this condition under Table 20. The applicant was also found to have sustained “recent dislocation left patella” for which an impairment rating of nil points was assigned under Table 4. The applicant’s asthma attracted an impairment rating of nil points under Table 2.
Discussion of the Evidence
17. The Tribunal noted that the reason for the change in the impairment ratings which were made in relation to the applicant stemmed from the 31 October 2003 Medical Assessment Report where Dr Nicoll opined in relation to both the multiple crush fractures and the osteoporosis that “LMO states temporary 3 – 24 months with improvement expected”. In turn, the applicant’s treating doctor, Dr Mark Smith, opined on 10 June 2003 that the applicant’s back condition should “somewhat improve” over the next 3 – 24 months and he stated “I expect this to improve somewhat but unable to determine the extent”. The applicant has been the patient of this doctor since 1984.
18. The later report from Dr Mark Smith of 8 January 2004 stated that the applicant’s back condition “is a permanent problem occurring in a young person and further fractures are likely in the long-term”. Dr Smith opined that this condition is expected to persist for more than 24 months and that the impact or effect of this condition on the applicant’s ability to function was expected to fluctuate. The Tribunal noted that the evidence from the applicant’s treating doctor was variable and uneven. The later report of 8 January 2004 does not sit easily with the earlier report of 10 June 2003, and in fact the latter is of more assistance to the Tribunal than the former in that it is quite specific. The applicant’s doctor was not called to give evidence and was not required for cross-examination by the respondent, so the Tribunal did not have the benefit of the tested evidence of this doctor as part of the matrix of factual and probative material available to it. The Tribunal noted that the 8 January 2004 medical report followed the negative 10 November 2003 cancellation decision. The Tribunal was left with the impression that the later medical report was written with a slant towards a favourable outcome for the applicant.
Issues
19. The issues to be determined by the Tribunal are:
(a)Does the applicant satisfy sections 94(1)(a) and 94(1)(b) of the Act, that is does his physical, intellectual or psychiatric impairment attract a rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act?
(b)If yes to (a), does the applicant satisfy section 94(1)(c) of the Act, that is, does he have a continuing inability to work?
(c)If yes to (b), does the applicant satisfy the remaining requirements of section 94(1) of the Act?
Applicant’s Submissions
20. The applicant’s written submissions provided a comprehensive summary of the history of his case, the associated medical evidence and of the factors and principles which he contended justified this Tribunal setting aside the cancellation decision and substituting a decision that his disability support pension should continue to be paid from 10 November 2003. In particular, the applicant contended that an impairment rating of 20 points under Table 20 was appropriate, given that Dr Ephraums’ observations and assessment from 1998 were accurate in 2003. The applicant pointed to the correspondence from Centrelink (Exhibit 3) where his disability support pension had been cancelled in 2001 and then reinstated following review by an Authorised Review Officer on the basis of the reconsideration of the medical evidence available to the Authorised Review Officer.
21. The applicant contended that despite the recent medical evidence surrounding the cancellation decision, he was still the best judge to determine whether he could work or not. The applicant contended, in effect, that as there were different impairment ratings assigned by different Health Services Australia medical advisers, he should be given the benefit of the doubt and the earlier impairment rating of 20 points should be adhered to.
22. In his closing address, the applicant pondered why the medical advisers engaged by the respondent could come up with different impairment ratings when in his opinion and self-reporting, his back condition was getting worse not better with time. The Tribunal would say, in response, it is the contemporaneous medical evidence rather than the earlier medical evidence which is of greater assistance to it in attempting to reach the correct and most preferable decision in this case. The applicant’s self-reporting of his medical conditions is only one factor to take into account.
23. In his closing address, the applicant said that he relied upon his written submissions. The Tribunal considered these submissions carefully in reaching its decision in this case.
Respondent’s Submissions
24. The respondent contended that the Tribunal should affirm the decision made on 10 November 2003. The respondent contended that the applicant’s impairments attracted an impairment rating of 10 points under Table 5.2 as he has back pain associated with past crush fractures and osteoporosis, with these conditions giving him a quarter of the normal range of movement.
Findings of Fact
25. Based upon the evidence before it, the Tribunal makes the following findings of fact:
(a) Mr Justin Cook was born on 4 May 1967.
(b) Mr Cook is an Australian resident.
(c)Mr Cook suffers from back pain associated with past multiple crush fractures at T10, T12 and L2. This condition is fully diagnosed but not stable.
(d)Mr Cook suffers from osteoporosis which is still under treatment and is not stabilised.
The Legislation
26. Section 94 of the Act contains the qualification criteria for when a person is eligible to be paid disability support pension. Section 94 reads:
“Qualification for disability support pension—continuing inability to work
94(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.
Note 1:For 'Australian resident', 'qualifying Australian residence' and 'qualifying residence exemption' see section 7.
Note 2: For Impairment Tables see section 23(1) and Schedule 1B
Meaning of continuing inability
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.
Note: For 'work' see subsection (5).
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:
‘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.”
27. The Tribunal noted that each of paragraphs (a) – (e) of section 94(1) must be satisfied before a person qualifies for disability support pension. The general approach to section 94 cases was summarised by Drummond J of the Federal Court of Australia in the case Secretary, Department of Family & Community Services v Michael [2001] FCA 1811:
“Section 94(1) the Social Security Act 1991 (Cth) declares that an applicant for a disability support pension must satisfy the five criteria there set out to be qualified for the grant of that pension. Under s 37 [of the] Social Security (Administration) Act 1999 (Cth) (formerly s 114 of the Social Security Act), the Secretary can only determine to grant the pension if he is satisfied that the applicant then, ie, at the date of determination of the pension claim, meets those criteria. Having determined that an applicant has an impairment which satisfies each of the criteria in s 94(1)(a) and (b) at that date, the Secretary will next have to determine whether the applicant satisfies the criterion in s 94(1)(c)(i), as defined in s 94(2), ie, to determine whether, at the date of deciding the pension claim, that particular impairment is sufficient of itself to prevent the applicant from doing any work, as defined in s 94(5), within the next two years, ie, the two years following the date of the decision.”
28. The reference to Impairment Tables in section 94 is to the Impairment Tables that are housed in Schedule 1B of the Act. The Introduction to the Impairment Tables states “1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work” and “These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance” (see para 2). The Tables also state that “For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised” (see para 4).
Tribunal’s Reasons
29. The Tribunal must consider the applicant’s eligibility for disability support pension as at the date of cancellation on 10 November 2003: see Simpson and Secretary, Department of Family and Community Services [2003] AATA 1127 at [14] and Freeman v Department of Social Security (1988) 15 ALD 671 where it was held that:
“Where the Tribunal was reviewing a refusal to grant a pension or benefit which had been applied for, it would be proper for the Tribunal to consider the entitlement to that pension or benefit up to the time of the Tribunal’s decision. But ss 158 and 159 of the Social Security Act, which provide that the grant or payment of a pension, benefit or allowance should not be made except upon the making in writing of a claim for that pension, benefit or allowance, made it clear that, when reviewing a decision to cancel a pension or benefit, the Tribunal should confine itself to considering eligibility as at the date of cancellation.”
30. The Tribunal noted the provisions of clause 4(1) of Schedule 2 to the Administration Act, which allows a person who does not qualify for disability support pension as at the date of application to become qualified within a further 13 weeks. In this case, this provision does not apply because it is not an application but a cancellation decision which is under review.
31. The medical evidence before the Tribunal establishes that the applicant does have osteoporosis, but there is no evidence that this condition has stabilised. The medical evidence before the Tribunal establishes that the applicant’s medical condition is that of multiple crush fractures T10, T12 and L2. This condition is fully documented and diagnosed, and then the question arises whether this condition is stable. The evidence of the applicant’s treating doctor in June 2003 is to the effect that some improvement of this condition is expected within the next two years, but that the extent of improvement could not be gauged.
32. The Tribunal was satisfied that the applicant does have a physical impairment within section 94(1)(a) and that these impairments comprise multiple crush fractures T10, T12 and L2 and osteoporosis. The next issue is whether the applicant’s physical impairment attracts a rating of 20 points or more under the Impairment Tables within section 94(1)(b). The medical evidence associated with the 2003 pension review undertaken of the applicant suggests that the applicant’s back condition is not stable. In addition, the applicant’s osteoporosis has not yet been fully treated.
33. In the opinion of the Tribunal, it cannot be said that the applicant’s medical conditions have stabilised. The applicant’s submissions to the Tribunal were to the effect that he expected his back condition to worsen over time. Stability in a medical condition is one of the essential requirements for the application of the Impairment Tables: see Kitanovski and Secretary, Department of Family and Community Services [2004] AATA 301 at [33] and Esho and Secretary, Department of Family and Community Services [2004] AATA 1118 at [23]. Stability in a medical condition constituting an impairment within section 94 is one of the foundational elements towards establishing its permanence: see Secretary, Department of Social Security v Murphy (FC 980809, unreported, Federal Court of Australia, QG205 of 1997, 29 June 1998, Drummond J). The Introduction to the Impairment Tables in Schedule 1B of the Act makes it abundantly clear that for a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. In this case, the Tribunal was not satisfied that the applicant’s back condition, while fully documented and diagnosed, is stabilised in the sense intended in the Impairment Tables. Similarly, the Tribunal was not satisfied that the applicant’s osteoporosis has been fully investigated, treated and stabilised. Even though the applicant’s back condition is long-standing, the most recent medical evidence available to the Tribunal suggest that is not permanent because while diagnosed and treated, it has not stabilised. On this basis, it is not possible for an impairment rating to be assigned within section 94(1)(b).
34. The Tribunal is satisfied on the evidence before it that the applicant does have physical impairments. But that is not the end of the inquiry. The Tribunal must be satisfied also that the applicant’s physical impairments are, among other things, stabilised. The evidence before the Tribunal does not establish this essential requirement. This conclusion means the Tribunal did not need to go on to consider the operation of section 94(1)(c) of the Act in the particular circumstances of the applicant whether or not he has a continuing inability to work.
35. For the record, the Tribunal was satisfied that the applicant satisfied sections 94(1)(d) and (e) in that he is over 16 use of age and he is an Australian resident.
Tribunal’s Conclusion
36. The five eligibility criteria for disability support pension in section 94 are cumulative. So if the applicant in this case does not satisfy all of them, then it follows that the applicant is not qualified for disability support pension. In this case, the applicant does not satisfy all of the section 94 criteria because the evidence before the Tribunal does not establish that he suffers from permanent medical conditions that attract an impairment rating of 20 points or more under the Impairment Tables within section 94(1)(b). Therefore, the applicant does not qualify for the payment of disability support pensions under the Act.
Tribunal’s Order
37. The Tribunal decides to affirm the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Camille Banks
Associate
Date of Hearing 7 October 2004
Date of Decision 2 December 2004
The Applicant appeared in person
For the Respondent Ms J Hamilton, Departmental Advocate
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