Dehle and Secretary, Department of Family and Community Services

[2004] AATA 934

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 934

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2004/4

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GEOFFREY DAVID DEHLE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date7 September 2004

PlaceHobart

Decision The decision under review is affirmed.  

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability support pension - impairment rating - lower back pain - ischaemic heart disease - neuralgia - continuing inability to work - rehabilitation.

Social Security Act 1991 – ss94(1)(a), 94(1)(b), 94(1)(c), 94(2)

Schedule 1B – Tables for Assessment of Work-related Impairment and Disability Support Pension.

Notes to the Schedules of the Social Security Act 1991.

Authorities

Re Pusnjak and Secretary, Department of Social Security (1998) AATA388

Secretary, Department of Social Security v Pusnjak (1999) 164 ALR 572

Re Locknar and Secretary, Department of Social Security (1993) 30 ALD 412

Re Skaf and Secretary, Department of Social Security (AATA) 13279

Re Foley and Secretary, Department of Family and Community Services (2003) AATA 836

Re Wray and Secretary, Department of Social Security (1995) AATA 10650

REASONS FOR DECISION

7 September 2004 Associate Professor B W Davis AM (Part-time Member)   

The Application

1.      The applicant, Geoffrey David Dehle, seeks review of a decision made by an officer of Centrelink on 28 April 2003, subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 12 December 2003, to reject the applicant’s claim for disability support pension.

The Issue

2. The issue is whether Mr Dehle has a continuing inability to work, under provisions of s94(1)(c) of the Social Security Act 1991 (“the Act”) and whether he is entitled to receive payment of disability support pension (DSP).

Standard of Proof

3.      The standard of proof is to the reasonable satisfaction of the Tribunal, on the balance of probabilities.

Background

4.      Mr Dehle applied for disability support provision on 5 April 2003 and supplied a report from his treating doctor (Dr P O’Sullivan, dated 1 April 2003) which stated that Mr Dehle has ischaemic heart disease, chronic low back pain, reflux esophagitis, secondary melanoma, and trigeminal neuralgia.

5.      Mr Dehle was assessed to have an impairment rating of 15 points for heart disease and 10 points for lower back pain, but the latter was assessed as temporary, as not all treatment options had been explored.   The assessment was dated 10 April 2003 and an impairment rating of nil was attached to all other claimed disabilities.

6.      An impairment rating of at least 20 points is required to qualify for DSP and as the only firm impairment rating was 15 points for ischaemic heart disease, his claim was rejected on 28 April 2003.   

7.      Mr Dehle requested review of this decision and on 5 June 2003 an authorised review officer (ARO), varied this decision, assigning 25 points on the basis the back pain had now been accepted as permanent.   However, Mr Dehle’s claim for DSP was again rejected on grounds he did not have a continuing inability to work.    On 9 September 2003 the applicant sought further review by the Social Security Appeals Tribunal (SSAT).

8.      An SSAT hearing was conducted in Launceston on 12 December 2003.  Mr Dehle was accompanied by his former wife Ms Ann-Maree Dehle but he alone gave evidence.

9.      Mr Dehle stated he had been on disability support pension in 1995, but it had been cancelled by Centrelink following a review.   His medical conditions were now worse, with ischaemic heart problems, a lower back disability non permanent and the neuralgia severe and frequent.   He was attempting to manage his condition by self-medication of prescription drugs and was not anxious to seek specialist advice or go to hospital.   He spends most of his time at home, reading and using a computer to undertake a university preparation course.

10.     The SSAT considered relevant documents in the case, the treating doctor’s report from Dr P Sullivan dated 1 April 2003 and a work capacity report dated 10 April 2003.   Dr Sullivan considered Mr Dehle’s disabilities to be severe enough to significantly diminish his capacity to perform, however the work capacity report stressed that his back pain remained largely untreated and the applicant was unwilling to seek specialist advice about this.

11. Having considered all available evidence and application of the law, the SSAT found that Mr Dehle satisfied s94(1)(a) of the Act, but not s94(1)(b). He was therefore not entitled to receive disability support pension. Mr Dehle then sought review by the Administrative Appeals Tribunal on 12 January 2004.

Facts and Contentions

12. The applicant did not file a statement of facts and contentions, but the respondent did so. DFCS conceded that Mr Dehle’s application satisfied both ss94(1)(a) and 94(1)(b) of the Act, now that his impairment rating exceeds 20 points, however Centrelink argued that he did not meet requirements of s94(1)(c) in that he did not have a continuing inability to work.

The AAT Hearing

13.     The AAT hearing was conducted in Ulverstone on 19 August 2004, the applicant representing himself and the respondent by Ms Diana Hutchinson.   The applicant did not call any witnesses.

14.     In opening submissions after being sworn, Mr Dehle argued that his combined impairments which were ongoing, would prevent him working within the next two years and perhaps forever.   He claimed not to be able to undertake even light duties at present.   Although elective surgery had been proposed he was reluctant to accept the risks involved and his heart problem and bouts of neuralgia forced him to lie down for several hours per day.   This severely limited any job prospects.   He was attempting a rehabilitation program, with a view to trying to qualify for university study, but this was proving difficult.

15.     Miss Hutchinson for the respondent, drew attention to medical reports from Dr Sullivan and Dr Tabart which discussed the applicant’s impairment problems.  Dr Tabart in a report dated 11 December 2000 considered Mr Dehle was likely to be fit to work within six months.   This had not eventuated, but Dr Sullivan had not discounted some prospects for employment, provided the applicant did not engage in heavy lifting duties or have to deal with ladders or stairs.   Dr Sullivan had indicated Mr Dehle’s impairments would continue, but his conditions were now relatively stabilised.   He would need some time off during employment if fatigue  or neuralgia occurred.

16.     In response Mr Dehle stated that his condition had worsened since Dr Sullivan’s report and having occupied various vocational roles in the past, he was aware employers would be reluctant to employ somebody whose availability and reliability was open to question.   He stated that because of neuralgia he might have to cease working at any time and because of fatigue had lost about fifty percent of work capacity.   He was on Newstart allowance and forced to attempt a rehabilitation course.

17.     Ms Diana Hutchinson drew attention to a work capacity assessment report by Damian Moore, rehabilitation consultant, dated 10 April 2003, in which he stated Mr Dehle’s heart condition had stabilised and the applicant himself considered self-medication dealt with the back problem, so light duties were feasible for Mr Dehle.  He outlined work limitations, which were primarily those of limiting bending, lifting heavy loads and avoiding endurance tasks.   Mr Moore considered Mr Dehle needed advice about physiotherapy and some vocational counselling.

18.     Mr Dehle repeated that his situation had grown worse and that vocational tasks of the kind Ms Hutchinson suggested as prospects, such as clerical duties, security officer, call centre operator were not feasible, since he might be put at physical risk or could not concentrate.

19.     The respondent then called as witness Ms Irene Nissen of CRS Australia, rehabilitation consultants.   After being sworn and providing a proof of evidence, Ms Nissen indicated she had previously been Mr Dehle’s occupational therapist, but now was acting as rehabilitation specialist.   Her services would not have been engaged unless there was a belief rehabilitation was possible.

20.     Ms Nissen agreed there were many tasks, such as forklift operator which were not feasible for Mr Dehle, given the need for dexterity, movement and focus which were essential.   Nonetheless there were many tasks which were feasible within the limits of his physical impairments, such as clerical or probation duties, although he might need some retraining for this type of work.   Mr Dehle was now undertaking a vocational rehabilitation program with the aim of assisting him to return to employment.

21. Mr Dehle did not make a closing submission, other than to emphasise his incapacity to undertake remunerative work within the next two years and probably long-term. Ms Hutchinson said the medical evidence indicated the applicant did not have an ongoing inability to work, there were some vocations open to him, albeit with limitations. Overall his situation did not meet criteria specified in s94(1)(c) of the Act.

Analysis

22.     The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, but taking into account statutory provisions and any relevant prior case determinations.

23. Centrelink has conceded that Mr Dehle’s application for DSP meets criteria specified in ss94(1)(a) and 94(1)9b), as well as s94(1)(d) of the Act, however the principal issue is whether the applicant satisfies s94(1)(c) of the Act, concerning continuing inability to work.

24.     The relevant legislative provisions are as follows:

“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;

(iithe Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; 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)       has 10 years qualifying Australian residence, or has a qualifying   residence exemption for a disability support pension; or

(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A)      is not an Australian resident; and

(B)      is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.”

25. Section 94(2) deals with the meaning of “continuing inability to work”, while ss94(3) and 94(5) clarify some aspects that are not to be considered and the treatment of the word “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.

Note: For work see subsection (5).

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.”

In section 94(5):

“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.

Person not qualified in certain circumstances.”

26.     It is clear from the above that the Tribunal must consider two factors, namely the degree of impairment and medical situation of the applicant, but more especially what this implies in terms of “continuing inability to work”.   Mr Dehle claims his disabilities have worsened in the past twelve months and he is unable to engage in a number of vocational fields that have been suggested to him.   However he did not supply the Tribunal with any medical or other supporting evidence to support this contention and continues to rely upon self-medication rather than seeking further medical advice.

27.     Available medical evidence from Dr P Sullivan in April 2003, supported by a work capability assessment conducted by Mr Damien Moore dated April 2003, and a further rehabilitation assessment by Ms Irene Nissen dated 17 August 2004, all recognise Mr Dehle has significant disabilities, but consider these have been largely stabilised and do not preclude the possibility of suitable employment, once vocational rehabilitation is pursued.

28.     There are numerous case determinations in the AAT and Federal Court dealing with the issue of “continuing inability to work”.    In general these focus on the skills and work experience of the individual involved and the kinds of vocational pursuits that might appear appropriate and available, given the disabilities involved.

29.     In Secretary, Department of Social Security and Pusnjak (1999) 164 ALR 572, Drummond J said that in assessing continuing inability to work:

“… The intention in the current section 94(2) is that the question of an applicant’s continuing inability to work … is to be determined by reference, first, to whether his impairment is sufficient to prevent him engaging in any of the necessarily limited range of work for which he has the requisite skills and experience and then by reference to whether there is training of a kind that should fit him, within a two year period, for work which he cannot do now, but would be able to do, given his actual capacities.”

30.     In Skaf and Secretary, Department of Social Security (1998) AATA 1739, the Tribunal found that although the applicant met the criteria specified in s94(1)(b) of the Act, i.e. an impairment rating of 20 points or more, there remained the issue of whether he could undertake part-time or ongoing work or had an enduring inability to work. The Tribunal determined that with appropriate vocational or educational training he could undertake light duties and therefore did not meet the criteria of s94(1)(c) of the Act i.e. an ongoing inability to work.

31.     Turning to Mr Dehle’s case, he gave evidence to the Tribunal of a range of employment experience, including work in a hospital, “roustabout duties in the mining industry” and clerical duties in a bank.    He also indicated an interest in nursing.  Rehabilitation consultant Damien Moore in his report of 10 April 2003, considered the applicant could take on light employment, but did not specify fields, merely noting that Mr Dehle should explore treatment options which might open further possibilities.

32.     Ms Nissen in her report of 17 August 2004 drew attention to Mr Dehle’s prior clerical experience, but in evidence to the Tribunal considered there were other prospects, such as car park attendant, sales person, probation officer or similar, providing some vocational training was provided.   It was accepted that Mr Dehle could suffer fatigue or neuralgia problems that might require periodic rest periods, nonetheless this did not negate the possibility of light remunerative employment.

33. Taking this material and previous evidence into account, the Tribunal believes that on the balance of probabilities, Geoffrey David Dehle does not have a continuing inability to work, within the meaning of s94 of the Act. He therefore fails to qualify for disability support pension (DSP).

Decision

34.     The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  19 August 2004
Date of Decision  7 September 2004
Counsel for the Applicant         Applicant appeared on his own behalf
Solicitor for the Applicant           
Counsel for the Respondent     Ms Diana Hutchinson
Solicitor for the Respondent     Centrelink