Dean; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1672

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1672

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600755

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And RUSSELL DEAN

Respondent

DECISION

Tribunal Mr P McDermott, Senior Member, RFD

Date17 August 2007

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes a decision that the respondent was not eligible for disability support pension at the time of the cancellation of his disability support pension.

................[sgd]..............................

Senior Member  

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – whether applicant has impairment rating of 20 points or more – decision of Social Security Appeals Tribunal set aside the cancellation of disability support pension – decision of Social Security Appeals set aside

Social Security Act 1991 (Cth) s 94, Schedule 1B

Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126

REASONS FOR DECISION

17 August 2007   Mr P McDermott, Senior Member, RFD

Introduction

1.      I have to decide whether Mr Russell Dean is entitled to a disability support pension. My decision will largely turn on whether there is medical evidence that at the time that Centrelink cancelled his disability support pension Mr Dean had medical conditions which affected his ability to work.

Prior Decisions

2.      For some time Mr Dean has been entitled to receive disability support pension but Centrelink have decided, by reference to social security law, that he is no longer entitled to receive this benefit. Mr Dean was initially granted disability support pension in 1991. He had a period of employment in 2003 and 2004. In September 2004, following that employment, he was again granted disability support pension.

3.      In December 2005 Mr Dean commenced work for 35 hours a week as a sub-contractor. His disability support pension was then suspended for his failure to complete and return financial information forms. His disability support pension was restored in May 2006 when he returned the necessary forms to Centrelink.

4.      On 7 June 2006 Centrelink made a decision that Mr Dean was no longer qualified to receive disability support pension.  On 10 July 2006 the original decision maker, after the consideration of further medical evidence from Mr Dean, decided not to vary the cancellation decision. On 7 August 2006 the authorised review officer of Centrelink affirmed the cancellation decision.

5.      On 14 September 2006 the Social Security Appeals Tribunal (SSAT) set aside the cancellation decision and decided that Mr Dean remained entitled to disability support pension.

6.      On 18 October 2006 the Secretary made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal.

Eligibility Criteria

7. The entitlement to disability support pension is conferred by s 94 of the Social Security Act1991 (“the Act”).

8.      A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94(1)(a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94(1)(b)); and the person has a continuing inability to work (s 94(1)(c)). All of these requirements must be satisfied before a person is entitled to disability support pension.

9. In considering whether Mr Dean had a “continuing inability to work” I must have regard to the definition in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next 2 years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 30 hours per week at award wages or above that exists in Australia, even if that work is not locally accessible (s 94(5)).

10. There are other provisions in s 94 that Mr Dean satisfies. He is over the age of 16 years (s 94(1)(d)) and he is an Australian resident (s 94(1)(e)(i)).

Impairment Tables

11. The Impairment Tables which I must consider are in Schedule 1B of the Act.

12.     Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history and examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

13.     Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered to be permanent. That paragraph states that once “a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years”. The paragraph concludes with a statement that a “condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years”.

14.     Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

Time for Determining Eligibility

15.     For Mr Dean to be qualified to receive disability support pension, he must meet the eligibility criteria on 7 June 2006. That is the date of the cancellation of his pension.

Evidence of Respondent

16.     Mr Dean gave evidence before me. He stated that at the date of the hearing he was currently not working. He stated that he had stopped work some 4 weeks prior to the hearing. In evidence he stated that he stopped work because he had “started drinking alcohol”. After he had informed the Tribunal that he had started drinking alcohol again, Mr Dean was clearly upset and not in a position to give any further evidence. I excused him from giving any further evidence.

Treating Doctor’s Reports

17.     Centrelink was provided with a Treating Doctor’s Report dated 10 May 2006 from Dr L McLindon [T7]. Dr McLindon in his report confirms a diagnosis of Mr Dean having “Insulin dependent diabetes secondary to chronic pancreatitis”. The history section of the report mentions “alcoholic pancreatitis”. The treating doctor reported that the current symptoms included fatigue. It is apparent from the report of the treating doctor that it was “difficult to control” the diabetes condition. The treating doctor also mentioned the symptom of a “Recurrent spontaneous infection”. The treating doctor also reported that Mr Dean was coping well within restrictions; he has a good attitude and had recently started some part-time work.

18.     Centrelink was provided with another Treating Doctor’s Report dated 21 June 2006 from Dr L McLindon [T14]. In that report Dr McLindon mentions a diagnosis of “alcoholic pancreatitis – chronic” as a diagnosis. The treating doctor also mentions the “insulin dependent diabetes” as a symptom.

Work Capacity Assessment Report

19.     On 6 June 2006 a Work Capacity/Participation Assessment Report [T8] was completed by Ms A Dyer, an occupational therapist. Ms Dyer reported that he was “currently working six; four-hour shifts a week as a cleaner”. Ms Dyer also completed a further assessment report on 19 February 2007 which was admitted in evidence before me [ex. A2]. At the hearing this report was referred to as “Attachment D”.

Findings of the Tribunal

20.     In determining this application I have considered the documented conditions of Mr Dean including his lumbar condition, his upper limb and shoulder condition, the diabetes condition, the hypercholesterolemia condition, the hypothyroidism condition and his alcohol dependence condition. These conditions have been investigated in the reports upon Mr Dean.

21. On the basis of his diabetes condition alone Mr Dean has an impairment for the purposes of the Act (s 94(1)(a)).

22.     I next have to consider whether his conditions warrant him being assigned an impairment rating of 20 points or more under the Impairment Tables (s 94(1)(b)); and whether he has a continuing inability to work (s 94(1)(c)).

23.     I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

24.     I make the observation that the approach of Ms Dyer in considering the conditions of Mr Dean was fair and balanced. She has had regard to the various conditions of Mr Dean as outlined in the reports of the treating doctor. In her report of 19 February 2007 she noted that Mr Dean had difficulty in managing his then current hours of work. In her report of 6 June 2006 she noted the physical limitations of Mr Dean: see Work Capacity/Participation Assessment Report [T8, fol 43]. Ms Dyer has been realistic in recognising that Mr Dean is unable to undertake heavy work.

25.     I am satisfied that Mr Dean should be assigned an impairment rating of 35 points on the basis of his conditions.

26.     I assign 20 points for the diabetes condition of Mr Dean. The descriptor for the 20 points rating is for “Diabetes mellitus … not satisfactorily controlled” (Schedule 1B, Table 19, Endocrine Disorders). The treating doctor has reported that the diabetes condition is “Difficult to control despite insulin” [T7, fol 34]. In a later report, the treating doctor states that Mr Dean has been on “multiple medications” for his diabetes [T14, fol 69].

27.     Ms Dyer gave Mr Dean a rating of 5 points for his alcohol dependence. Her rating for this condition was challenged during cross-examination. In cross-examination Ms Dyer fairly acknowledged that a relapse would certainly affect the ability of Mr Dean to return to work. At the time of her latter report she stated that she did not think that he had a significant chance of a relapse. I consider that at this time her assessment was reasonable having regard to the fact that he was then in regular work. I consider that Ms Dyer had properly investigated the alcohol dependence condition. For instance in cross-examination she mentioned that she was aware that Mr Dyer had detoxification treatment some 14 years earlier.

28.     Dr Prior, whose evidence was not challenged, had assigned a nil rating to the alcohol dependence condition. Dr Prior had acknowledged that in the past, when he was drinking heavily, he would have rated 20 points on the Impairment Tables.

29.     As I am administering beneficial legislation I have decided that it is fair to assign a 5 points rating to this condition having regard to the possibility of a relapse at the time of the cancellation of the disability support pension. I consider that the advocate who appeared for the Secretary was fair in not pressing for a nil rating to be assigned for the alcohol dependence condition.

30.     During her cross-examination Ms Dyer had acknowledged that she was not aware of the psychiatric treatment of Mr Dean in 2006 and 2007. On 24 January 2007 Dr Prior had interviewed Mr Dean in his rooms and in his report of 30 January 2007, Dr Prior had remarked: “Mr Dean reports that he has not previously consulted with a Psychiatrist but has seen a Psychologist through the Pain Clinic in 2005” [ex. A1, para. 5.1]. Mr Dean did not inform Dr Prior of any psychiatric treatment in 2006. This treatment may have occurred after Mr Dean was interviewed by Dr Prior. No evidence of that actual treatment, or the precise times of that treatment, was placed before me.  Both reports of the treating doctor make no mention of any psychiatric treatment. This treatment would appear to have occurred some time after the cancellation of the disability support pension. That treatment would, however, be a matter that would have to be considered by Centrelink if Mr Dean decides to lodge a further application for disability support pension.

31.     I assign 5 points for the back condition of Mr Dean. He has a loss of a quarter range of movement in back flexion and rotation. This would appropriately fit within the 5 point rating which refers to a “Loss of one-quarter of normal range of movement” (Schedule 1B, Table 5.2, Spinal Function).

32.     I assign 5 points for the upper limb and shoulder condition of Mr Dean.  Dr J Fraser, orthopaedic surgeon, has investigated this condition. Dr Fraser has commented on the fixed flexion deformity of the left (non-dominant) elbow and loss of extension in the 4^th and 5^th fingers of the left hand and partial nerve palsy to the extensor muscles of the left forearm. Ms A Byrne, physiotherapist, has confirmed that Mr Dean has “decreased muscle power in his left upper limb from a previous left elbow dislocation approximately 20 years ago” [T15, fol 74]. Mr Dean had told the SSAT that he can only use his left hand as a “leveller” [T2, fol 6]. In view of his inability to give evidence before me I was unable to ask him to give an explanation of this condition. I have taken into account the fact that this condition relates to Mr Dean’s non-dominant upper limb, and that he told the SSAT that he can only use his left hand as a “leveller”. I consider that it would be appropriate to assign a 5 point rating for this condition in view of “the loss of strength” of that upper limb (Schedule 1B, Table 3, Upper Limb Function).

33.     I have also noted that Mr Dean has stated that medication controls his hypercholesterolemia condition. I consider that it is therefore appropriate to assign a nil rating for this condition. I note that in his first report of May 2006 Dr McLindon stated that the hypercholesterolemia was “generally well managed and cause[s] minimal or limited impact on ability to function” [T7, fol 36]. A month later, in June 2006, Dr McLindon stated that the hypercholesterolemia was “difficult to control” [T14, fol 69]. No evidence was placed before me to explain the difference in the two reports. 

34.     I have considered the hypothyroidism condition. I note that in his first report of May 2006 Dr McLindon stated that this condition was “generally well managed and cause[s] minimal or limited impact on ability to function” [T7, fol 36]. A month later, in June 2006, Dr McLindon stated that this condition was “mostly stable” [T14, fol 69]. I have also noted that Mr Dean has stated that medication controls his hypothyroidism condition. I consider that it is therefore appropriate to assign a nil rating for the condition.

35. I must next consider whether Mr Dean has a continuing inability to work. This involves the consideration of s 94(2) of the Act. In order for the Secretary to conclude that a person has a continuing inability to work because of an impairment it is necessary that the criteria in both s 94(2)(a) and s 94(2)(b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).

36.     In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 Drummond J made reference to the explanatory memorandum of the amendment which is now s 94(2)(a) of the Act. His Honour, at 452, formulated the test that I must now consider: “As to s 94(2)(a): Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?”

37. In considering s 94(2)(a) I have relied upon the assessment of Ms Dyer that Mr Dean was capable of working up to 29 hours per week. This has the consequence that s 94(2)(a) of the Act is satisfied in this case. This conclusion necessitates that I must next consider the application of s 94(2)(b) of the Act.

38.     In Secretary, Department of Social Security v Pusnjak (1999) 56 ALR 444 Drummond J, at 452, formulated the next test that I must now I must now consider: “As to s 94(2)(b)(i): Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next 2 years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?”

39.     Ms Dyer in her report of 19 February 2007 has stated that Mr Dean would be capable of completing on-the-job training for vocations such as a call centre operator, telemarketer, toll booth operator and sales roles and he would be fit to perform those vocations [ex A2]. At the time when she completed that report, Mr Dean was then currently working 42 hours per week as a cleaner despite his impairment. If Mr Dean was working as a cleaner for 42 hours, he would be able to complete light, less skilled roles for more than 30 hours per week.

40. I have concluded that the impairment of Mr Dean is not of itself sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next two years in the terms of s 94(2)(b)(i) of the Act. I consider that Mr Dean was at the relevant time capable of undertaking retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired. Ms Dyer has mentioned that training courses, such as tax driving courses, usually last for 2 to 3 days. There was no evidence placed before me to indicate that Mr Dyer would be unable to undertake retraining.

41. It is therefore necessary for me to next consider the application of s 94(2)(b)(ii) of the Act. In Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 Drummond J, at 452 [32], formulated the next test that I must consider: “As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a 2-year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete the training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?” His Honour remarked, at [32], that an affirmative answer to this question would mean that “the applicant will not be eligible for the pension”.

42. I have concluded that it is likely, taking into account only the impediment his impairment may place on the ability of Mr Dean to complete the training within that period, that Mr Dean will acquire the skills or experience necessary to fit him for the new class of work within 2 years. These are the various new classes of work which were outlined by Ms Dyer. I therefore consider that Mr Dean does not satisfy the test in s 94(2)(b)(ii) of the Act.

43.     There was no evidence placed before me which would indicate that an impediment of Mr Dean would prevent him from completing a retraining course or from acquiring the necessary skills or experience. In cross-examination Ms Dyer disagreed that the age of Mr Dean would prevent him from being a call-centre operator. She explained that she had clients with similar conditions who could perform a call-centre role. At the time when she completed that report, Mr Dean was then currently working 42 hours per week as a cleaner. I consider that Ms Dyer is correct in concluding that if Mr Dean was then working as a cleaner for 42 hours, he would be able to complete light, less skilled roles for more than 30 hours per week.

44.     The case for the respondent has largely been based on the contention that the alcohol dependence of Mr Dean is the most significant factor preventing him from being able to work and/or undertake educational or vocational training. I have therefore given some consideration that the effect that alcoholism has had on Mr Dean. I appreciate that counsel for Mr Dean has contended that Mr Dean has misrepresented the degree of his alcoholism to medical practitioners. However, the inability of Mr Dean to give evidence before me has meant that I have had no testimony from him on this contention. I appreciate that Mr Dean gave evidence on this matter before the SSAT. However, his failure to give evidence before me makes it difficult to evaluate his condition. I make the observation that I have evidence from the treating doctor of Mr Dean that was made soon after Centrelink cancelled the pension, that his then use of alcohol was “mild” [T14, fol 64]. That evidence has not been contradicted by any testimony that was given before me.

45.     In considering this application I must consider all the evidence that is before me. In Elston and Australian Community Pharmacy Authority (1996) 44 ALD 126 Deputy President D P Breen emphasised (at 128): “Proceedings before the Administrative Appeals Tribunal are proceedings de novo. It is well established principle that the task of the tribunal is to arrive at the correct and preferable decision and that it is to do so on the material before it. It is inherent in that principle that the material before the tribunal may well be different from the material before the … determining authority making the reviewable decision. Experience has shown that inevitably it is, often to a marked degree”. This is such a case, as adverted to by Deputy President D P Breen, where the material before this Tribunal differs from the material which was placed before the SSAT.

46.     I have before me the reports of Dr Prior and Ms Dyer which were prepared after the proceedings before the SSAT. I consider that the alcohol dependence condition of Mr Dean was fairly considered in both reports. I have made a decision on the basis of evidence which was not before the SSAT.  

Decision

47.     I set aside the decision under review and substitute a decision that the respondent was not eligible for disability support pension at the time of the cancellation of his disability support pension.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD

Signed:         ...................[sgd]..................................................................
           F Kamst, Legal Research Officer

Date/s of Hearing  20 June 2007
Date of Decision  17 August 2007
Applicant   Mr M Black, departmental advocate
Counsel for the Respondent     Mr N Jarro
Solicitor for the Respondent      Ms A Gaffy, Sciaccas