Cooper and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1584
•25 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1584
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/925
GENERAL ADMINISTRATIVE DIVISION ) Re GLEN COOPER Applicant
And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date25 July 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[sgd]..............................
Dr M Denovan, Member
CATCHWORDS
SOCIAL SECURITY – Centrelink cancelled applicant’s disability support pension – medical evidence – only one of the applicant’s impairments considered to be permanent – applicant demonstrated the ability to work more than 15 hours per week – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Social Security Act 1991 (Cth) s 94, Schedule 1B
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
REASONS FOR DECISION
25 July 2007 Dr M Denovan, Member Introduction
1. Mr Glen Cooper has avascular necrosis of the left hip. I have to decide whether he is entitled to continue to receive disability support pension in respect of this condition.
Background
2. Mr Cooper lodged a claim for disability support pension on 22 July 2005 (T5).
3. Mr Cooper was granted disability support pension on 22 September 2005.
4. As a result of declaring three or more lots of earnings for work exceeding 20 hours per fortnight in six fortnightly periods, in or about May 2006 the applicant was selected for review of entitlement to disability support pension under the transitional arrangements applicable to disability support pensions granted between 11 May 2005 and 30 June 2006.
5. On 31 July 2006 Centrelink cancelled the applicant’s disability support pension, on the basis that he was able to work 15 hours a week or more within the next two years.
6. Mr Cooper was dissatisfied with the decision of Centrelink, and on 12 September 2006 he requested a review of the decision. On 15 September 2006 the original decision maker affirmed the decision. On the same day Mr Cooper requested that an authorised review officer review the decision.
7. On 20 September 2006 the authorised review officer affirmed the decision to cancel the applicant’s disability support pension.
8. On 29 September 2006 the applicant applied to the Social Security Appeals Tribunal (SSAT) for review of the decision. The decision was affirmed by the SSAT on 1 December 2006.
9. The application for review by the Administrative Appeals Tribunal was lodged on 18 December 2006.
Material before the Tribunal
10. The following documents were admitted into evidence:
Exhibit 1 T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 Respondent’s statement of facts and contentions dated 29 April 2007
Exhibit 3 Letter to the Administrative Appeals Tribunal from the applicant dated 29 April 2007
Exhibit 4 Letter from Dr L Robson dated 16 May 2007
Exhibit 5 Letter from the applicant dated 29 April 2007
Exhibit 6 Letter from the applicant dated 14 May 2007
Exhibit 7 Letter from the applicant dated 14 May 2007
Exhibit 8 Treating doctor’s report from Dr L Robson dated 12 March 2007
Issue For Determination
11. I have to consider whether, as at 31 July 2006, Mr Cooper was entitled to disability support pension in respect of avascular necrosis.
12. To qualify for disability support pension the applicant needs to meet the criteria set out in s 94 of the Social Security Act 1991 (the Act), that is:
·he must have a physical, intellectual or psychiatric impairment; and
·his impairment must have been of 20 points or more under the Impairment Tables; and
·he must have a continuing inability to work.
Evidence of the Applicant
13. Mr Cooper said that in July 2006 his condition had deteriorated to the extent that he was requiring pain relief medication that interfered with his capacity to work. He said that at the same time he was also suffering from ulcers on his legs which had become infected. Mr Cooper said that his hip condition is not going to improve, and is expected to deteriorate. The ulcer on his left leg started off small and deteriorated. In July 2006 he had an ulcer approximately 100mm by 20 mm by 5-6 mm deep. The ulcers on his legs have become worse since his operation to treat a fractured hip in 2003, and, in combination with his hip pain, make it very hard for Mr Cooper to get up and get going. The longer he sits down, the harder it is to get up.
14. Mr Cooper said that he was working 16-22 hours in July 2006. At that time he was making the best of a bad situation, and was hoping to find another driver to relieve him of some of his hours. It was not that he would have been able to work those hours normally, he was pushing to do it. Had he been able to get another driver he may have been able to continue that job. The company he worked for at the time was reluctant to split driver runs. As he liked the job, he retained it as long as possible.
15. He discussed the situation with his doctor who told him that if he required more medication the situation could become dangerous. He was requiring up to 400 mg of Tramal a day, however his doctor said that a safe level was 100 mg a day. Some days it was very hard for Mr Cooper to keep his dose of medication to a safe level.
16. As a result of the pain and side effects of medication, Mr Cooper dropped his working hours to 12-14 hours a fortnight in September 2006. Mr Cooper feels that the decision to cancel his pension failed to consider his leg ulcers and the amount of analgesia he requires. Mr Cooper pointed out that the medical assessment provided by Bob Graham dated 26 July 2006 does not mention either analgesia or leg ulcers.
Medical evidence
17. In her treating doctor’s report dated 22 July 2005, Dr McDonald identified Mr Cooper’s condition as avascular necrosis of the left femoral head. Dr McDonald stated that the applicant had increasing pain in the left hip with decreasing function, decreased range of motion of the left hip, especially flexion. Dr McDonald indicated that the applicant was waiting for an orthopaedic appointment and will be placed on the public waiting list for a hip replacement. When describing how the condition impacted on the applicant’s ability to function the doctor said that the applicant could not sit for extended periods, and this restriction interferes with his livelihood as a truck/bus driver. Dr McDonald considered that the condition would persist and function would continue to deteriorate until the applicant is able to get a left hip replacement.
18. On 15 September 2005 the applicant was assessed by Dr Farrell, a medical adviser with Health Services Australia (T12). Dr Farrell confirmed the applicant’s left hip condition was permanent and assigned an impairment rating of 20 points under Table 4. Dr Farrell assessed the applicant as being able to work up to 29 hours per week.
19. The applicant lodged a treating doctor’s report from Dr McDonald on 11 July 2006 (T46). Dr McDonald indicated that the applicant suffered from recurrent left lower leg ulceration. She listed this condition, along with hypertension, in part B of the treating doctor’s report, which is a section that requests addition information about medical conditions that are generally well managed, and cause minimal or limited impact on ability to function. Dr McDonald said that Mr Cooper was currently on a waiting list for a total hip replacement. She opined that the applicant was unfit for his usual work/study, or any other work for eight hours or more a week.
20. Dr McDonald examined the applicant on 31 July 2006 and at that time considered “infected ulcer left lower leg” was a condition which has an impact on the applicant’s capacity to function (T60). She said the condition was diagnosed on 17 May 2006, that the effect of the condition was that the applicant was required to attend doctor’s appointments twice weekly and needs to keep his leg elevated most of the day, and cannot walk for long intervals. Dr McDonald opined that the condition would last for 3-24 months and would significantly improve.
21. In her undated treating doctor’s report which was received by Centrelink on 15 March 2007, general practitioner Dr L Robson provided the diagnoses of infected left lower leg ulcer and avascular necrosis of the left femoral neck (exhibit 8). In relation to the later condition, Dr Robson indicated that the applicant was currently being managed by Dr S Lawrie, orthopaedic surgeon at “NG” Hospital. Dr Robson said that Dr Lawrie was reluctant to perform total hip replacement surgery at present, and in order for him to consider surgery the applicant needed to be free of ulcers for at least one year. Dr Robson said that the condition impacts on the applicant’s capacity to function in that it makes walking, and standing from a sitting position difficult, and causes pain if he stays in one position for more than 15-30 minutes.
22. In relation to the infected left lower leg ulcer, Dr Robson said that the applicant has recurrent left lower leg ulcer at the site of extensive scar tissue from a previous compound fracture and internal fixation and chronic venous insufficiency. She indicated that the applicant was seen by vascular surgeon Dr K Schulze on 24 May 2006. Dr Robson indicated the ulcer required daily dressings, is painful and disabling, and requires constant leg elevation and compression. Dr Robson said that the condition affects the applicant’s capacity to function in that he needs to have his leg elevated to promote healing and must not stand for prolonged periods. Dr Robson opined that the condition would persist for more than 24 months and was likely to fluctuate.
23. In her letter dated 16 May 2007 Dr Robson said that it is unlikely that Mr Cooper’s leg ulcers will heal sufficiently to allow surgery in the foreseeable future.
Evidence of Mr Graham
24. Mr Cooper attended a job capacity assessment on 26 July 2006. The assessor assigned an impairment rating of 20 points in relation to his lower limb deficiency, and noted Mr Cooper was currently working 20 hours a week. The assessor opined that Mr Cooper’s work capacity was unlikely to increase in the next 24 months, and said it was likely that he would have a work capacity of 20 hours per week in similar conditions where there were split shifts, of no more than two hours each, with a significant break in between.
25. Mr Graham gave oral evidence by telephone at the hearing. In relation to the job capacity report dated 26 July 2006, Mr Graham told the Tribunal that when preparing that report he did take into account the applicant’s analgesic intake and also his leg ulcers, although he acknowledged that he did not specifically refer to these in his report. Mr Graham said that he believed Mr Cooper was capable of working 20 hours a week with his analgesic requirements and leg ulcers, in a light semi skilled position which would allow him to alternate between sitting and standing.
Findings of Tribunal
Impairment ratings
26. Before an impairment rating can be assigned under the Impairment Tables the condition must be considered to be fully documented, diagnosed, investigated, treated and stabilised (Schedule 1B of the Act). A condition will be considered fully stabilised if it is unlikely that there will be any significant functional improvement within the next two years. In order to assess whether a condition is fully diagnosed, treated and stabilised I must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
27. The condition must also be considered to be permanent. A condition is considered permanent if, after being diagnosed, treated and stabilised, it is more likely than not that it will persist into the foreseeable future.
28. The Respondent accepts that at the relevant date, the applicant had impairment due to avascular necrosis that should be regarded as permanent, and that a rating of 20 points assigned under Table 4 of the Impairment Tables is appropriate. I agree.
29. It is important however that I consider Mr Cooper’s leg ulcers as it is Mr Cooper’s assertion that this condition impacts on his capacity to work. The Respondent asserts that the condition is not permanent and therefore cannot be taken into consideration when assessing whether Mr Cooper has an inability to work.
30. Mr Cooper was seen by a vascular surgeon on 23 May 2006 and the medical evidence of both Dr McDonald and Dr Robson points to this condition having a significant effect on the applicant’s capacity to function. Having regard to Dr Robson’s most recent letter dated 16 May 2007 it appears that Mr Cooper’s leg ulcers may be a permanent condition. The question I must ask myself, however, is not whether the condition could be allocated an impairment rating now. Rather the question is whether the condition could have been given an impairment rating on 31 July 2006, the date of cancellation of pension: Freeman v Secretary, Department of Social Security 19 (1988) FCR 342.
31. On 31 July 2006 Dr McDonald considered that the condition would last 3-24 months and was likely to significantly improve. The evidence is that the condition was not fully investigated until 23 May 2007 when an arterial Doppler study was performed (T60, folio 168). I therefore conclude that on 31 July 2006 Mr Cooper’s leg ulcers were not fully diagnosed, and at that time the condition was not anticipated to last more than two years and therefore is unable to be assigned a rating.
32. This means Mr Cooper has a total impairment rating of 20 points on 31 July 2006.
Ability to work
33. On 1 July 2006 amendments to the Social Security Act 1991 resulted in a change to the criteria for disability support pension. Those changes included amendments to the definition of work in the Act. Effectively, this means that to be eligible for disability support pension, a person must have an inability to work at least 15 hours per week, (previously at least 30 hours per week), at minimum wages or above. As Mr Cooper applied for disability support pension after 10 May 2005, he is not protected by the transitional arrangements, and review of his eligibility is to be determined against the new provisions.
34. At the time of cancellation, s 94(2) provided that for a person to be considered to have a continuing inability to work:
·The impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years, and
·either,
othe impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years, or
oIf the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
35. Work is defined by section 94(5) of the Act as work of at least 15 hours per week, at minimum wages or above, that exists in Australia, even if not locally accessible by the person. At the time Mr Cooper was granted disability support pension, work was defined as work of at least 30 hours per week.
36. Any impairment that is not permanent within the meaning of the Act cannot be considered when assessing whether a person has a continuing inability to work Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500. This means that I cannot take into consideration Mr Cooper’s leg ulcers when I consider whether he was able to work on 31 July 2006.
37. Dr McDonald opined that the applicant was unable to work 8 hours or more on 10 July 2006. Mr Graham considered the applicant capable of working 15-22 hours a week. I am unable to accept the opinion of Dr McDonald because firstly, she has taken into consideration the applicant’s leg ulcers, and secondly, Mr Cooper demonstrated a capacity to work during the relevant time period, as he was in fact working 20 hours per week at the time Mr Graham examined him.
38. From 16 February 2006 to 28 June 2006 Mr Cooper was employed as a bus driver with Ace Buses, and worked an average of 37.25 hours per fortnight, excluding school holiday periods (attachment A exhibit 2).
39. From 11 July 2006 to 7 February 2007 the applicant was employed as a bus driver with Buslink. Up to the end of September he worked an average of 37.8 hours per fortnight. From October 2006 to February 2007 the applicant worked an average of 26.8 hours each fortnight, excluding school holiday periods.
40. Mr Cooper confirmed at the hearing that he was working these hours, that is, he was working between 16 and 20 hours per week from February 2006 to September 2006. The evidence therefore indicates that as at 31 July 2006 Mr Cooper’s medical conditions (both permanent and temporary) did not prevent him from undertaking work.
Decision
41. Mr Cooper did not have a continuing inability to work on 31 July 2006. On that date he did not satisfy the qualification criteria for disability support pension. I affirm the decision under review.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ..........[sgd]....................................................................
F Kamst, Legal Research OfficerDate/s of Hearing 29 May 2007
Date of Decision 25 July 2007
The applicant was unrepresented
For the Respondent Mr M Black, departmental advocate
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