Coppolaro and Secretary, Department of Employment and Workplace Relations
[2006] AATA 273
•24 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 273
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/563
GENERAL ADMINISTRATIVE DIVISION )
Re TONY COPPOLARO Applicant
And
SECRETARY, DEPARTMENT
OF EMPLOYMENT AND
WORKPLACE RELATIONSRespondent
DECISION
Tribunal Mr RG Kenny, Member Date24 March 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review
.........[Sgd]........
R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY disability support pension - physical, intellectual or psychiatric impairment – impairment rating less than 20 points – relevant time-frame for qualification – no continuing inability to work.
Social Security Act 1991 ss 94(1)
Social Security (Administration) Act 1999 ss 39(3), cl 4 sch 2,
REASONS FOR DECISION
24 March 2006 Mr RG Kenny, Member Background
1. On 14 January 2005, Tony Coppolaro (the applicant) lodged a claim for payment of disability support pension, a form of income support which is payable in accordance with the terms of the Social Security Act 1991 (the Act). Therein, he nominated “severe left hip osteoarthritis”, “tear of the labral cartilage in the left hip”, “severe sleep apnoea”, “permanent damage to right knee” and “limited use of the right shoulder” as the basis of his claim. On 24 January 2005, a delegate of Centrelink rejected his claim and this was affirmed by an authorised review officer on 29 June 2005. On 27 July 2005, the decision was further affirmed by the Social Security Appeals Tribunal and, on 30 August 2005, Mr Coppolaro sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Hearing
2. Mr Coppolaro attended the hearing but was not represented. The Secretary, Department of Employment and Workplace Relations (the respondent) was represented by Ms S Oliver. In evidence were the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (exhibit 1); a summary of Mr Coppolaro’s conditions and medical evidence pertaining thereto prepared by Ms Oliver (exhibit 2); and computer printouts summarising Mr Coppolaro’s recent earnings (exhibit 3). ). After the hearing, Mr Coppalaro forwarded a medical report from his current treating medical practitioner, Dr A Potapov, and both Ms Oliver and he made a further submission in relation to it.
Issues and Legislation
3. The requirements for payment of the disability support pension are set out in subsection 94(1) of the Act which, in so far as relevant, reads:
“Qualification for disability support pension
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) …………..; 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) ………….; or
(iii) ……………..”
4. All of those requirements must be met. It is not disputed that Mr Coppolaro meets the age and residential requirements of that provision and the Tribunal must determine whether he has an intellectual or physical impairment and whether the threshold of 20 points under the impairment tables is satisfied. In accordance with subsection 39(3) and clause 4 of schedule 2 of the Social Security (Administration) Act 1999, the qualifying criteria must be met on the date of Mr Coppolaro’s claim or within 13 weeks of that date. That 13 week period spans from 14 January 2005 until 14 April 2005. In the event that those requirements are met, the Tribunal will need to determine whether, at that time, he had a continuing inability to work because of the impairment. In relation to a continuing inability to work, the relevant parts of section 94 read:
“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)…………...
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.”
Consideration
5. The medical evidence in this matter comprises reports from two of Mr Coppolaro’s treating medical practitioners, Dr A Potapov, dated 14 January 2005 and 8 February 2005 as well as from Dr P McCarthy, dated 2 June 2005. Reports were also available from practitioners with Health Services Australia, Dr J Gurr, dated 4 February 2004 and 21 January 2005 as well as Dr A Nath dated 4 April 2005. In addition, the Tribunal had the report, dated 25 January 2006, provided after the hearing from Dr Potopov.
6. The various conditions which have been the subject of reference by those practitioners are left hip osteoarthritis, right knee osteoarthritis, sleep apnoea, right shoulder condition, disc protrusion (C5/C6, C6/C7 with back pain), obesity and depression. The first reference to depression was in the report of Dr McCarthy on 2 June 2005 and that falls outside of the 13 week time-frame noted above. For that reason, any impairment related to that condition are not relevant to the decision. In relation to sleep apnoea, the condition has been consistently referred to as one which has not been fully treated in that recommendations for the use of a CPAP device have been made and Mr Coppolaro has not utilised such a device. In his evidence, Mr Coppolaro said that the condition was much less significant in recent times because of weight loss which has meant that his obesity has been significantly reduced. Schedule 1B of the Act sets out the impairment tables relevant to the Tribunal’s determination and it includes a requirement that, for a rating to be assigned, the condition under consideration must be fully documented, diagnosed, investigated, treated and stabilised. That description does not pertain to Mr Coppolaro’s sleep apnoea and, therefore, no rating can be applied to it.
7. Ms Oliver conceded that the remaining conditions are permanent and capable of attracting an impairment rating. However, it was contended that the only condition which attracted such a rating was the left hip osteoarthritis along with the right knee osteoarthritis which impacted upon the lower limbs of Mr Coppolaro to the extent of the level of impairment which attracts 10 points under Table 4.
8. I accept Ms Oliver’s submission in relation to the right shoulder condition and obesity. Consistently, these have been described by Dr Gurr, Dr Nath, Dr Potapov and Dr McCarthy as posing minimal restrictions on Mr Coppolaro. Accordingly, I am satisfied that no impairment rating should be allocated for those conditions.
9. In his evidence, Mr Coppolaro said that his major problem is his left hip which gives him difficulty walking especially on uneven ground and when negotiating slopes. Since November 2005, he has been using a push bike for both exercise and for conveyance. He said that this has strengthened his hip. In relation to Mr Coppalaro’s lower limbs, Dr Potapov, in his reports dated 14 January 2005 and 8 February 2005, referred to the need for him to use strong analgesic medication for pain relief and said that it presents him with difficulties in changing position, walking and standing. In his most recent report, dated 25 January 2006, he described it as “painful, stiff and irritable” indicating that a hip replacement would be needed in the future. Dr McCarthy described pain which reduced mobility and which led to immobility around the workplace. Dr Gurr reported that he had moderate impairment of walking, squatting, kneeling and climbing stairs and that he needed frequent changes of posture in the carrying out of light duties. Dr Gurr allocated 10 points under Table 4. Dr Nath considered the files prepared by Mr Coppolaro’s treating doctors and also by Dr Gurr and concurred in the allocation of 10 points under Table 4.
10. The criteria for each of the 10 and 20 point levels in Table 4 read:
“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.”
11. On the basis of the medical evidence, I am satisfied that there are limitations to the lower limb function of Mr Coppolaro but I am also satisfied that the descriptions given are best met by the criteria listed at the 10 point rating under Table 4. In making that finding, I have noted that, since October 2005 and to the date of the hearing in February 2006, Mr Coppolaro has been able to re-engage in remunerative work. In October and November, he was employed by ASA Pty Limited where he was making man-hole doors which he described as repetitive work with lots of movement. He was engaged there for 38 hours per week but said that he began to feel the strain on his body from engaging in that activity. He ceased work partly because of that and partly because he left the area where he was living because he separated from his wife. He is now working on a part-time casual basis as a service station attendant where he works for between 20 to 30 hours per week. At the hearing, he said that his task is to carry out all the functions in the service station which involves serving customers, stocking shelves as needed, maintaining the documentation associated with the work including incoming and outgoing stock as well as fuel. He does this, nearly always, on his own for shifts of up to 6½ hours at a time. In his post-hearing submission, Mr Coppolaro said that additional staff being added to the roster and that meant that he would be doing fewer long shifts. Nevertheless, he said that he has worked more than 30 hours per week on 3 occasions.
12. As I am satisfied that the impairment associated with Mr Coppolaro’s lower limbs is no more than that which is described as moderate at the 10 point level under Table 4, he does not meet the requirements for payment of a disability support pension.
13. Even if it were the case that the threshold of 20 points were met by Mr Coppolaro, the medical evidence of Dr Gurr and Dr Nath is that, even within the 13 week period following his claim, he would be capable of undertaking employment up to 29 hours per week and would be able to do so to the level of 30 hours per week within six months. Dr Potopov, in his recent report, described Mr Coppolaro as nolt being able to carry out his usual work. The assessment by Dr Gurr and Dr Nath, but not that of Dr Potopov, is borne out by the subsequent employment activities undertaken by Mr Coppolaro. Accordingly, even if it were the case that he met the threshold requirement of 20 impairment points, I am satisfied that he did not have a continuing inability to work at the relevant time.
Decision
14. The Tribunal affirms the decision under review.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: J Lauriston
(for) Legal Research Officer
Date/s of Hearing 7 February 2006
Date of Decision 24 March 2006
The Applicant appeared in person
For the Respondent Ms S Oliver, Departmental Advocate
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