Cram and Secretary, Department of Family and Community Services

[2006] AATA 415

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 415

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/65

GENERAL ADMINISTRATIVE DIVISION		)
Re		IAN CRAM

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr M. A. Griffin, Member

Date12 May 2006 

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Mr M. A. Griffin
  Member 

CATCHWORDS

SOCIAL SECURITY – application for disability support pension – whether disability is permanent – whether Applicant has impairments of 20 points or more under Impairment Tables – whether Applicant has a continuing inability to work

Social Security Act 1991 – section 94, Schedule 1B

REASONS FOR DECISION

12 May 2006  Mr M. A. Griffin, Member   

1.      Mr Ian Cram was employed by Alstom Australia Pty Ltd from 23 July 2001 until 4 September 2003 as an electrician building switchboards.  In early August 2002, Mr Cram reported that he began experiencing pain over his right shoulder joint (T9/24, T80/180).

2.           On 10 September 2003, Mr Cram lodged a claim for Disability Support Pension (“DSP”) with Centrelink (T11).

3.      On 28 October 2003, Centrelink rejected Mr Cram’s DSP claim (T17) and on 13 January 2004, an Authorised Review Officer (“ARO”) affirmed this decision (T28).

4.      On 13 February 2004, Centrelink cancelled Mr Cram’s medical exemption from the activity test for Newstart allowance (T31) and on 2 March 2004 an ARO affirmed this decision.

5.      On 3 May 2004, the Social Security Appeals Tribunal (“SSAT”) reviewed each ARO decision and decided to affirm the decision to reject Mr Cram’s DSP and to set aside the decision to cease his exemption from the activity test and substitute a new decision that Mr Cram qualifies for the Newstart activity test exemption with a review to occur in six months from the date of decision. 

6.      The decision of the SSAT dated 3 May 2004 is the decision to be reviewed by this Tribunal.

LEGISLATION

7. The relevant legislation in this matter is section 94 and Schedule 1B of the Social Security Act 1991 (“the Act”). Section 94 of the Act sets out the criteria which a person must meet to qualify for DSP:

“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

…”

8. Table 3 of the Impairment Tables at Schedule 1B of the Act provides criteria for assessing upper limb impairments:

“TABLE 3                 UPPER LIMB FUNCTION

All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.

Rating   Criteria

NIL Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.

FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.

TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.

FIFTEENDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.

TWENTYDemonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or Unable to use non-dominant upper limb at all.

THIRTY         Unable to use dominant upper limb at all.”

HEARING

9. At the hearing, Mr Cram was self represented and Mr. A. Duri appeared for the Secretary, Department of Family and Community Services (“the Respondent”). Mr Cram gave oral evidence. I had before me the documents (“T-documents”) lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.

ISSUES BEFORE THE TRIBUNAL

10. The issue before the Tribunal is whether Mr Cram is qualified for DSP in accordance with section 94 of the Act. In particular whether:

(a)Mr Cram’s impairments are of 20 points or more under the Impairment Tables; and if so

(b)Mr Cram has a continuing inability to work.

APPLICANT’S EVIDENCE

11.          At the first hearing of this application, Mr Cram alleged a conspiracy on the part of Centrelink officers and the three assessing medical practitioners to improperly deny him DSP.  I asked Mr Cram for evidence of the alleged conspiracy.  Mr Cram said he was not prepared to present such evidence. Mr Cram relied upon a letter (T51) from a Health Services Australia (“HSA") senior medical advisor apologising “…for any distress you may have felt about your medical assessment…” in support of his claim of an erroneous medical assessment process.  However, I can find nothing in that letter, or in any of the other substantial volume of materials that Mr Cram has obtained by summons, which demonstrates either a conspiracy or an error in the medical assessment processes undertaken.

12.          Mr Cram claims the medical assessments did not properly take account of the pain from his arm and also that his hand and shoulder were improperly considered as one issue rather than being considered separately.  Mr Cram underwent surgery on his shoulder in January 2005.  He says that both his hand and shoulder pain have worsened since the surgery.  Mr Cram also introduced, for the first time on the last hearing day a possible psychiatric condition which is referred to in doctor’s reports (A3, A5 and A6) which date from around the early to mid 1990s.

MEDICAL EVIDENCE

13.     In a Treating Doctor’s Report lodged on 23 September 2003 (T10), Dr Swan diagnosed Mr Cram as having “strained (R) shoulder muscles”. He opined that Mr Cram was “unable to lift more than 6kg above shoulder height/No pulling of cable. But able to work 8hrs/day on suitable other employment in this industry”.  Dr Swan stated that he expected the effect of this condition on Mr Cram’s ability to function to significantly improve, depending on the success of possible surgery.  Dr Swan also made a presumptive diagnosis of “strained (R) extensor pollicus longus + tendons & extensions to 2^nd and 3^rd digits”. Dr Swan indicated that further investigations/tests were planned to confirm the diagnosis.

14.      On 17 October 2003 Mr Cram was assessed by Dr Wassenaar of HSA (T15). Mr Cram’s condition, which was described as “right shoulder injury/right hand injury”, was assigned a nil impairment rating under Impairment Table 3 of the Act on the basis that it had not stabilised and was temporary. Dr Wassenaar reported that Mr Cram (T15/82):

“… is currently fit for fulltime appropriate light work not involving overhead/repetitive/reaching use of the right arm. It is unclear what his eventual functional state might be as he is still in the process of having his conditions diagnosed and treated.” 

15.          On 7 October 2003, Dr Miller, Neurologist, performed a motor nerve conduction test.  Dr Miller reported that he hoped for “gradual improvement given time”.

16.          On 5 January 2004, Dr Ellis reported that:

“Pain in his right shoulder continues aggravated by using his arm, particularly above shoulder level, there is a clicking sensation in the shoulder, pain is often spontaneous, he cannot lie on his right arm without aggravation of the shoulder.

…

Concerning the right shoulder injury there is abundant clinical and radiological evidence that the injury is a traumatic capsulitis.  The shoulder joint is tender, the ultrasonic scan findings and the MRI scan findings have been referred to above, they provide evidence objectively of supraspinatus tendonitis, bicipital tendonitis and subacromial bursitis.  He is right handed.  The left shoulder and arm have not been involved”.

17.          Dr Ellis also notes that “I think it is likely that he will be able to return to his employment as an electrician in some field which does not require physically demanding work”.

CONSIDERATION OF THE EVIDENCE

18. It is accepted that Mr Cram meets the requirement of section 94(1)(a) of the Act in that he suffers from a physical impairment; right shoulder pain. However, it is the Respondent’s position that Mr Cram fails to satisfy section 94(1)(b) of the Act on the basis that he does not have an impairment rating of 20 points or more under Impairment Table 3. The Respondent contends that at the time of Mr Cram’s DSP claim, his medical conditions were not yet fully treated and stabilised and thus the rating of his condition cannot be assigned as the condition “must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

19.     I am not satisfied on the evidence available that Mr Cram’s allegations of conspiracy on the part of Centrelink officers and the assessing medical practitioners has any substance at all.

20.     I find on the available evidence that neither Mr Cram’s right shoulder condition nor psychiatric condition were treated and stabilised at the relevant time.

21. It is not necessary for me to consider whether Mr Cram has a continuing inability to work. However, I note that the Respondent contends that Mr Cram does not have a continuing inability to work and as such does not satisfy section 94(1)(c) of the Act. In support of this, the Respondent referred to Dr Wong’s comments:

“At present I do not believe Mr Cram is fit to return to his previous employment as an Electrician or Air Conditioning Engineer.  He is also not capable of performing strenuous physical work.  However I believe Mr Cram has the capacity to perform sedentary duties provided that it is not necessary for him to forward reach with his right arm or abduct his right arm for any period of time.  Suitable work may include working at an information call centre or providing after sales technical advice over the phone.  Mr Cram would also be suited for simple office tasks provided that he’s not required to lift heavy weights.  Furthermore he should be allowed to vary his posture from time to time.  I am of the view that Mr Cram is fit to perform suitable work for at least 30 hours a week”.

22.          I accept that evidence and find accordingly.

DECISION

23.      The decision under review is affirmed.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M. A. Griffin, Member.

Signed:  A. Krilis, Associate

Dates of Hearing  29 April 2005 and 21 December 2005
Date of Decision  12 May 2006
Representative for the Applicant               self represented

Advocate for the Respondent                   Mr A. Duri