Croker and Secretary Department of Employment and Workplace Relations - [2007] AATA 1224

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1224
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/0555

GENERAL ADMINISTRATIVE DIVISION )

Re CLAYTON ROBERT CROKER

Applicant

And

SECRETARTY DEPARTMENT OF EMPLOYMENT AND WORK PLACE RELATIONS

Respondent

DECISION

Tribunal Mr P W Taylor SC, Senior Member
Date13 April 2007
PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

...................[sgd]........................
Mr P W Taylor SC
Senior Member

CATCHWORDS
SOCIAL SECURITY - somatoform disorder - disability support pension - interference with hand function - impairment tables - impairment assessment - qualifying threshold
LEGISTLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Administrative Appeals Tribunal Act 1975
CASE LAW
Re Hudson and Department of Family and Community Services [2000] AATA 502; (2000) 4(4) SSR 51
Re Ryan and Secretary, Department of Family and Community Services (2003) 73 ALD 70
Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902
Simpson and Secretary, Department of Family and Community Services [2003] AATA 1127
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Galea and Secretary to the Department of Social Security (1985) 7 ALN N57
Sargent and Secretary Department of Family and Community Services [2005] AATA 1076
REASONS FOR DECISION

13 April 2007 Mr P W Taylor SC, Senior Member

1.      Since about 1990 / 1991 Mr Croker has complained of tinnitus and symptoms affecting his hands. He refers to his hand symptoms as RSI. He has variously described his RSI symptoms as pain, burning, tingling, pins and needles and sensations of heat and swelling. Sometimes they used to affect the back of his neck and his shoulders.
2.      Prior to 1990/1991 Mr Croker had various jobs, the last of them being casual employment as a butcher. Mr Croker says his tinnitus and RSI stopped him working. For 12 to 18 months he did not work at all. In early 1993 he attempted clerical work. He got a manual work job at Simmsmetal. But his symptoms persisted. He attended college to retrain. Even the writing involved in his college activities triggered his hand symptoms. Mr Croker had his hand symptoms investigated at the rheumatology department at St Vincents Hospital. They could not then identify, nor has anyone subsequently identified, any causal pathology.
Disability Support Pension granted in 1994
3.      In March 1994 Mr Croker applied for Disability Support Pension (‘DSP’). Again he attended St Vincent's Hospital. The hospital referred Mr Croker to a psychiatrist, Dr Robert Fisher. In his 21 June 1994 report Dr Fisher said Mr Croker presented with a somatoform pain disorder in which his complaints were not substantiated by identifiable underlying organic pathology. Dr Fisher said it was important that attempts be made to have Mr Croker control "his abnormal illness behaviour" and recommended that Mr Croker be encouraged to retrain and stay at work.
4.      Dr Fisher’s diagnosis was taken into account in the assessment of Mr Croker’s DSP application in 1994. The Commonwealth Medical Officer’s report…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Croker and Secretary Department of Employment and Workplace...

Details

AGLC: Croker and Secretary Department of Employment and Workplace Relations [2007] AATA 1224
Case: [2007] AATA 1224
Decision Date: 13 April 2007

CaseChat Overview and Summary

Croker, the applicant, appealed a decision by the Secretary of the Department of Employment and Workplace Relations, which found that Croker was ineligible for a disability support pension due to insufficient evidence of a qualifying physical impairment. The appeal was heard by the Administrative Appeals Tribunal (AAT). The central issue was whether the Tribunal should have found that the applicant met the qualifying threshold for the pension, given the evidence of the applicant's somatoform disorder and its impact on hand function.

The Tribunal examined the relevant statutory provisions, primarily the Social Security Act 1991 and the Social Security (Administration) Act 1999, alongside the administrative guidelines and relevant case law. The applicant argued that the Tribunal should have assessed the impairment based on the functional impact on the applicant's hand rather than solely referring to the impairment tables. The Secretary argued that the applicant's condition did not meet the qualifying threshold as per the statutory criteria.

In its decision, the AAT found that the Tribunal had correctly applied the statutory criteria and relevant case law. The Tribunal noted that while the applicant's somatoform disorder did affect hand function, it did not meet the qualifying threshold for a disability support pension as per the impairment tables and the evidence provided. The Tribunal also considered the case law which emphasised the importance of the statutory criteria in assessing eligibility for the pension. The Tribunal concluded that the decision to deny the pension was correct, affirming the decision under review.

The AAT affirms the decision of the Secretary, finding that the applicant did not meet the qualifying threshold for a disability support pension.

Orders

Orders of the court

The Administrative Appeals Tribunal affirms the decision under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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GENERAL ADMINISTRATIVE DIVISION		)
Re		CLAYTON ROBERT CROKER