Crook and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1594
•26 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1594
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V200600858
GENERAL ADMINISTRATIVE DIVISION ) Re GREGORY CHARLES CROOK Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Regina Perton, Member Date26 July 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
SOCIAL SECURITY - Disability Support Pension – Conditions Attract 20 Points - Whether Applicant Has A Continuing Inability To Work
Social Security Act 1991 ss 94(1), 94(2), 94(3), 94(4) and 94(5)
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
REASONS FOR DECISION
26 July 2007 Regina Perton, Member 1. Gregory Charles Crook lodged a claim for disability support pension (DSP) on 24 March 2006 on the grounds that he suffered from insulin dependent diabetes mellitus (type 2), impaired vision and mild stroke. On 20 April 2006, Centrelink, which administers DSP for the respondent, determined that his conditions attracted the required 20 impairment points. However, Centrelink determined that Mr Crook was not eligible for DSP because his medical conditions did not result in a continuing inability to work for at least 30 hours per week.
2. On 22 June 2006, an authorised review officer of Centrelink (ARO) agreed with Centrelink’s original decision. Mr Crook applied to the Social Security Appeals Tribunal (SSAT) for review of that decision. On 1 September 2006, the SSAT affirmed the decision. Mr Crook lodged an application for review of the SSAT decision with the Tribunal on 15 September 2006.
Issue
3. The issue before the Tribunal is whether Mr Crook had a continuing inability to work at the date of his claim or within 13 weeks after lodging the claim.
Legislative requirements
4. The requirements for qualification for DSP (prior to 1 July 2006) are set out in s 94 of the Social Security Act 1991 (the Act) as follows:
94(1) A person is qualified for disability support pension if:
…
(c)one of the following applies:
(i)the person has a continuing inability to work;
…
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) 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:…
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.
5. In Secretary, Department of Social Security v Pusnjak [1999] FCA 994 Drummond J noted that the question of an applicant’s continuing inability to work is to be determined by reference to whether the impairment is sufficient to prevent the applicant engaging in any work for which he or she has the requisite skills and experience. It is then determined by reference to whether training is available, within a two-year period, for work that he or she cannot do now, but would be able to do after training, in light of physical or actual capacities. The Court observed at [27]:
It is also clear from the extraneous material that the legislature intended that the Secretary, in applying this test, should disregard attitudinal factors peculiar to the applicant, such as a lack of motivation to work. Hence the “of itself” qualification to “impairment” in s 94(2).
Did Mr Crook have a continuing inability to work?
6. Mr Crook was 56 years old when he lodged his claim for DSP on 24 March 2006. He listed his disabilities as diabetes mellitus (type 2) and impaired vision from which he had suffered since June 1986. He also suffered a mild stroke in 2001. He stated that the treatment he was receiving affected his ability to work as it caused him to have poor concentration, become easily fatigued and suffer dizziness and headaches.
7. In a Treating Doctor’s Report dated 15 March 2006 which accompanied the claim for DSP, Dr Matthew Long, Mr Crook’s general practitioner, stated that Mr Crook had been a patient of the practice for about 20 years. He stated that Mr Crook suffers from diabetes mellitus requiring insulin with onset approximately 20 years earlier. Dr Long indicated that Mr Crook experiences regular hypoglycaemic episodes secondary to his insulin therapy which is managed by specialist endocrinologists. Mr Crook has had eye surgery and will require further operations. Dr Long stated that as a result of his condition, Mr Crook is easily fatigued, has poor concentration and impaired vision in his right eye. Dr Long indicated that Mr Crook also suffers from hypertension and high cholesterol for which he takes medication. He indicated that there is no significant impact on Mr Crook’s ability to function due to the latter conditions.
8. On 19 April 2006, Dr J Lane of Health Services Australia Ltd assessed Mr Crook’s health and ability to work. He determined that Mr Crook’s medical condition attracted the 20 points that are one of the pre-requisites for qualification for DSP. In an attachment to his medical report under the heading Justification of Assessment, Dr Lane stated:
This 56 year old man, former Bank and security worker, took redundancy from bank 1998 and stopped security work 2002 after a mild stroke from which he fully recovered. He is limited in his endurance by lethargy and easy fatigue associated with insulin dependent diabetes (he also has deteriorating vision right eye due to diabetic retinopathy and requires intermittent laser surgery). He also has hyperlipidemia and hypertension controlled with appropriate therapy. His hypertension is symptom free currently.
In my opinion he is fit for full-time light low stress work for award wages. Retraining and vocational rehabilitation may help with a return to suitable light work (e.g. telephone work, office helper, care-taker or gate keeper). His motivation to do suitable work is good, when he is well enough and if he can get a suitable job. CRS help is recommended. Review is suggested if his medical conditions deteriorate.
9. Dr Walter E Plehwe, consultant physician and endocrinologist, prepared a report dated 7 August 2006. He stated that Mr Crook was referred to him in March 1996 with a 12 year history of type 2 diabetes, the control of which had deteriorated despite dietary modification and lifestyle changes. Dr Plehwe stated that Mr Crook had commenced use of insulin in late 1996 but his glucose levels remained elevated. Dr Plehwe indicated that proliferative retinopathy was diagnosed in May 1997. He provided a history of Mr Crook’s medical problems since then and provided a description of his current medical condition and medication.
10. On 9 November 2006, Dr Long provided an updated medical report. He assessed Mr Crook’s conditions as attracting significantly more than 20 points. In his summary, he stated that:
Mr Crook’s medical conditions are permanent. They are likely to deteriorate in the upcoming years. Mr Crook feels that he is unable to do any work for 30 hours a week or more. Mr Crook is over 55 years old, even if he was physically able to work then I feel it he is unlikely to find suitable employment given his age.
11. Dr Clayton H Thomas, Consultant in Rehabilitation and Pain Medicine, prepared a report dated 1 February 2007 at Mr Crook’s request; in which he stated:
…
My understanding is that vocationally, he completed secondary education to Year 10 level. He then worked at the Commonwealth bank, getting to the stage of being a Branch Manager. He took a redundancy in 1998. He worked in security after that for about 15 months. He worked from 7aam to 5pm for two years. He did not enjoy the work and found it stressful.
He suffered a ‘mini stroke’. It sounded like he developed significant hypertension and attended the John Fawkner Hospital where he stayed overnight before being discharged.
On the 29th January 2007 he told me that he became fatigued with exercise. Despite this I noted that he was still able to play golf twice per week 18 holes; although this was with the use of an electric buggy.
Physically he had dupitrons affecting both arms and both hands; the left worse than the right. This did not appear to be disabling for him.
I noted that his diabetic control was sub-optimal and that his HBA1C was 8.8% when last tested; indicting overall poor diabetic control. I noted that he had surgical intervention to his eyes as a result of the complication of his diabetes. Despite this, his vision appeared to be reasonable with glasses.
I was impressed that there is a degree of anxiety in his presentation, which seemed to be quite significant. I felt that this may have been contributing to his overall apprehension with respect to his ability to return to work.
I would accept that he would have difficulty gaining work as he would present as an unattractive proposition for most employers. I do not think that he could work beyond a six hour day or a thirty hour week.
12. Eleanor Eshel, Occupational Therapist, undertook an assessment of Mr Crook’s job capacity on 19 March 2007 at the request of Centrelink. In her report on 2 April 2007, Ms Eshel gave the opinion that as at March 2006 and a year later, Mr Crook could work for 30 hours per week. She stated that Mr Crook had transferable skills that would enable him to obtain suitable light employment. However, she believed that he would benefit from a case-managed approach to returning to work, such as Vocational Rehabilitation.
13. On 16 May 2007, Mr Crook provided a statement to the Tribunal describing the impact of coping with a twice-daily intake of insulin and with a number of other types of medication. He stated that after taking the medication, he constantly suffers from fatigue, poor concentration and is easily stressed by family and friends. He stated that he needs to have a short sleep after walking the family pet for about 20 minutes, five days a week. Mr Crook indicated that even after eye operations in 2005 and 2006, his eyes still feel tired and gritty on a regular basis. He described his sleeping patterns as inconsistent. He stated that he was due to have surgery on his left hand on 7 June 2007 to try to correct a dupuytren’s contracture. He also cited a number of forthcoming medical examinations for conditions that were not cited in his DSP application. Mr Crook stated that he has not felt well enough to work since October 2002. He believed a health card would be particularly welcome given the high, ongoing costs of his medication.
14. In his oral evidence Mr Crook said that there had been no improvement in his health since March 2006. He said that he does not sleep well and gets tired easily. The medication he takes has affected the quality of his life and impacted on his relationship with his family. Mr Crook said that he has had two jobs since 1965. He left the Commonwealth Bank when offered a redundancy in 1998. He was already experiencing health difficulties and found his work at that time stressful. He then had a 15 month break from work before working in security for Melbourne City Council. He found that job difficult. He had a minor stroke and has not worked since October 2002. His wife works full-time.
15. Mr Crook said that Dr Lane and Dr Thomas had only seen him for short interviews. Ms Eshel’s interview was longer but he believed that she did not really understand how things were for him on a day-to-day basis. He said that he is apprehensive about trying to work and therefore unmotivated to give it a try. Mr Crook said that he is often anxious. However, he has not sought the assistance of a psychiatrist or a psychologist and is wary of taking more medication. He is still recovering from the operation on his hand and is yet to see if it has made a difference. He said that his primary motivation in seeking DSP has been access to a health care card as his medication costs are significant.
16. Mr Crook tendered a medical report dated 23 May 2007 which was prepared for his general practitioner by Dr Laurence Clemens, Consultant Rheumatologist. Dr Clemens was able to reassure Mr Crook that he was unlikely to suffer from the rheumatoid arthritis from which his mother greatly suffered. He noted that Mr Crook had been experiencing increased stiffness and pain in the joints of his left hand. The examination revealed evidence of early nodal osteoarthritis in the hands although the joints worked well. He noted Mr Crook’s forthcoming operation on his left hand.
17. The Tribunal accepts that Mr Crook faces psychological and physical barriers which have affected his confidence and motivation to work. However, Dr Thomas, Dr Lane and Ms Eshel have all determined that Mr Crook would have been able to undertake light work for 30 hours per week. Mr Crook indicated that the health professionals saw him only briefly and their assessments were based on limited information. However, the Tribunal is satisfied that they are appropriately qualified to give such opinions.
18. The Tribunal is not satisfied that the impairments suffered by Mr Crook at the date of application and over the following 13 weeks were of themselves sufficient to prevent him from working within the next 2 years (s 94(2)(a) of the Act). Nor is the Tribunal is not satisfied that the impairments are of themselves sufficient to prevent Mr Crook from undertaking educational or vocational or on-the-job training during the following two years (s 94(2)(b)(i) of the Act); or that such training was unlikely (because of the impairments) to enable him to do any work within the next two years (s 94(2)(b)(ii) of the Act).
19. Consequently, the Tribunal finds that Mr Crook did not demonstrate a continuing inability to work and did not satisfy s 94(2) of the Act. Therefore, he was unable to satisfy s 94(1)(c)(i). It follows that he did not satisfy s 94(1). Consequently, at the date of his application and over the following 13 weeks, Mr Crook did not qualify for DSP.
20. The Tribunal is only able to consider the period between 24 March 2006 and 23 June 2006 in relation to this application for review. If Mr Crook believes his condition has deteriorated or wishes to claim for additional disabilities, he is able to lodge a fresh claim for DSP.
DECISION
21. The Tribunal affirms the decision under review.
I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Dianne Eva
Clerk
Date of hearing: 13 July 2007
Date of decision: 26 July 2007
Advocate for the applicant: Self-representedAdvocate for the respondent: Ms K Paul, Centrelink Legal Services Branch
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