Doolan and Department of Family and Community Services
[2000] AATA 831
•18 September 2000
DECISION AND REASONS FOR DECISION [2000] AATA 831
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/858
GENERAL ADMINISTRATIVE DIVISION )
Re KEVIN DOOLAN
Applicant
And DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell
Date18 September 2000
PlaceSydney
Decision The decision under review is affirmed by the Tribunal.
………………………………….
Dr JD Campbell
Member
CATCHWORDS
Social Security – Disability Support Pension – Epilepsy – Assessment – Continuing inability to work
Social Security Act 1991.
REASONS FOR DECISION
Dr JD Campbell, Member
Mr Kevin Doolan ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 22 April 1999 which affirmed the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 6 August 1998 to cancel the Applicant's disability support pension. This decision had been reviewed and affirmed by an Authorised Review Officer ("ARO") on 27 October 1998.
A hearing was held before the Tribunal on 3 May 2000 at Quirindi at which the self represented Applicant gave oral evidence. The Respondent was represented by Ms Alex, an advocate from the Administrative law section of Centrelink.
The following material was placed in evidence before the Tribunal:
Exhibit Description Date
T1 – 24 p1 -100 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1 Report from CRS Australia 26 April 2000
A2 Medical report from Dr Thatcher 1 May 2000
A3 Statement by Applicant nominating record of seizures for 1999 and 2000. 1 May 2000
A4 Statement by Mr Taggart concerning accident in 1964 26 April 2000
A5 Applicant's salary record for 1997/98. Prepared 23 April 2000
R1 Respondent's Statement of Facts and Contentions. 13 October 1999
ISSUES:
The relevant issues in this matter are:
(a) whether the applicant has a physical, intellectual or psychiatric impairment and that impairment is assessed at 20 points or more under the impairment tables in schedule 1B of the Social Security Act 1991; and
(b) if so, whether or not he has a continuing inability to work because of the impairment because –·the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next 2 years; and either
·the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on the job training during the next 2 years; or
such training is unlikely (because of impairment) to enable him to do any work for at least 30 hours per week at award wages within the next 2 years.
LEGISLATION:
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94 (1) – (5), 100 (3) and the schedule 1B tables which represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks ("Schedule 1B Impairment Tables").
BACKGROUND:
The Applicant was born on 26 May 1947. In April 1987 the Applicant lodged a claim for Invalid Pension and this was subsequently granted. On 12 November 1991 the Applicant was transferred to a disability support pension. On 1 May 1997 the Applicant completed a statement as part of a review of his disability support pension (T4). A treating doctor's report was received by the Respondent on 2 May 1997 (T5) and the process repeated in October 1997 (T6, T7) and again in April 1998, with a medical assessment report being completed by May 1998. A vocational assessment was undertaken in July 1998 (T11). A decision to cancel the Applicant's disability support pension was made on 6 August 1998 (T21) and this decision was affirmed by the Authorised Review Officer on 27 October 1998 (T23) and by the Social Security Appeals Tribunal on 22 April 1999 (T2).
APPLICANT'S EVIDENCE:The Applicant told the Tribunal that he was born on 26 May 1947 and was educated to third year before qualifying as a baker. The Applicant stated that he had difficulty with his memory. He stated that after marrying he moved to Gloucester to work as a farmer, before returning to Quirindi and his own home where he worked in a bakehouse. Next he worked managing a property out of Quirindi, followed in 1975/76 where he worked on a 'fat lambs' property in the Guyra district. In 1979 he worked as a casual on properties around Quirindi.
The Applicant stated that he started receiving the invalid pension in the early 1980s. The Applicant is divorced from his wife, who continues to live in Quirindi and with whom he continues to communicate, as he does with his daughter and son. He currently lives with his mother who is aged 78 and spends most of his days sitting in the house wearing dark glasses because of the glare. He often gets dizzy and has had double vision for years. He spends his day reading the paper and books and watches television at lunchtime and in the evening. He awakes each day at 0525 hours and "potters around". He mows the lawn but does not do much gardening. He rarely goes down the street and does no shopping. He does the washing, his mother hangs it out, he takes it off and they share the ironing. His mother prepares the meals.
The Applicant stated that he does own a car, however his driving licence was cancelled on 13 December 1999. He does not drink or smoke and cannot remember when he was last out after dark. He generally does not go out very much, and while for a long time he was a member of the rodeo committee, he has given it away on account of an issue over missing funds.
The Applicant described his impairments to the Tribunal in the following terms:
(a)Epilepsy
Commenced in October 1997 when he had a seizure in the main street in Guyra. He has two types of seizures namely, a Grand mal during which he becomes unconscious and incontinent, and petit mal seizures. His seizures have increased over the last few months and he does not have an aura prior to a seizure. He maintains a diary of his seizures. A CT scan in April 2000 reported as normal and an MRI scan was scheduled for June 2000. He takes 200mg of Tegretol 4 times daily, 100mg of Dilantin 4 times daily and 250mg of Diamox twice a day. He has some difficulty with Tegretol, but in general does not worry about his epilepsy.
(b)Right upper and lower arm impairment
A car accident in 1964 resulted in fractured skull and fractured right humerus. In 1983 there was a further spiral fracture to his right humerus which was plated . The plate was removed in January 1984. The Applicant awoke in bed in May 1984 with a fracture to the upper third right humerus. The Applicant was treated in the Prince of Wales Hospital in February 1985 for osteomyelitis right humerus. There was a further fracture to the lower third right humerus in May 1985. The Applicant suffered a fractured right radius following a fall in July 1991. He underwent corrective surgery to right wrist in August 1991 (Applicant's evidence, T15).
As a consequence of the multiple fractures to his right humerus and right radius, and the osteomyelitis of his right humerus, the Applicant has a particular deformity to his right arm. While being able to dress without difficulty, he is unable to lift a chair with his right arm to any great level. Also being right-handed, he finds that he is unable "to write running writing". The Applicant also indicated that because of his impairments he has undertaken only minimal work in the last few years, working only 9 sole days for a few hours per day for Elders assisting with sorting and movement of stock in financial year 1997/98 (T15).
The Applicant also referred to and spoke of the frequency of his epileptic seizures and tabled the following information:
Number of seizures in 1989 (11), 1990 (15), 1991 (4), 1992 (2), 1993 (3), 1994 (2), 1995 (0), 1996 (3), 1997 (not recorded), 1998 (4), 1999 (12) including 2 hospitalisations, 2000 (8 up to May) including hospitalisation (Exhibit A3). The Applicant also tabled a medical report from Dr Thatcher (treating general practitioner). Dr Thatcher states that the Applicant has unstable epilepsy and is currently being managed with a new medication by his neurologist, Dr Hughes (Exhibit A2).
MEDICAL EVIDENCE:In a treating doctors report dated 29 April 1997, Dr Redmayne described the Applicant's conditions as:
(a)Epilepsy, grand mal, commenced 1977, long term and stable and limits his employment and work tolerance.
(b)Previously fractured right arm with secondary osteomyelitis. Stable. Some restriction of range of movement.
Dr Redmayne did not consider the Applicant fit for full-time work, but able to undertake part-time stock work or light farm work (T4, p20).
In an accompanying statement dated 1 May 1997, the Applicant stated that his medical conditions at that time did not effect the way he did things around the house, from using public transport or from driving. (T4, p16).
In an assessment report dated 17 June 1997, Dr Fogg concluded that the Applicant should be referred for an Australian Government Health Service Examination (T4A, p23).
On 4 October 1997 the Applicant completed a medical and other information sheet in a similar manner to his report of 1 May 1997 (T5). The treating doctor noted in his report that there was some instability in the Applicant's epilepsy (T7). The Australian Government Health Services medical officer again recommended a medical examination (T6).
The Applicant completed a "Medical and other Information" section of the disability support pension form on 23 April 1998, and having listed his disabilities as right temporal lobe epilepsy, osteomyelitis right humerus and memory loss, stated that these disabilities made it difficult for him to write (all the time), remembering (often) attending work or other appointments (often) and concentrating (sometimes). For all the other categories nominated, the Applicant indicated that he had no problems (T8, p36).
On 7 May 1998, Dr Reading, following an examination on 7 April 1998 of the Applicant, made the following whole person assessment.
"This 51 year old man was difficult to assess.
Mr Doolan had no treating doctor's report. I was unable to contact Mr Doolan's local doctor for additional information as his secretary advised me that his doctor is currently away until 25 May.
Mr Doolan stated that he suffered from chronic epilepsy. He added that it was currently well controlled with regular medication.
Mr Doolan stated that he has suffered from osteomyelitis involving his right arm in 1984. He said that he had been left with permanent mild weakness involving the limb. He is right-handed. On the evidence today, it appears that his arm has healed reasonably well with only minor residual disability. Mr Doolan gave a number of examples to demonstrate some of his ongoing problems:·He stated that he could no longer lift heavy weights up past the shoulder level with his right hand.
·He stated that he could no longer use a hammer.
·He mentioned that he was no longer able to write with a cursive writing style and that he had changed to printing as an alternative but he added that he found no difficulty with this.
Mr Doolan alluded to difficulties with his memory but it was unclear today as to how severe this problem was.
I have recommended a psychometric assessment via a psychologist in order to further clarify this issue.
On the evidence available today, it would seem that Mr Doolan might be medically fit for light work but this will need to be reviewed in the light of the psychologist's report."(T9, p53)
In a consulting psychologist's report dated 16 July 1998, Mr Lucas expressed the following opinions:
"In view of considerations under the Impairment of Cognition in relation to his memory functioning, the assessment did not support any significant impairment, although I noted some impairments at times in relation to the inhibiting effects of anxiety and pressure as I mentioned previously.
Certainly, in view of al the information and in relation to the information that he is employed on a casual basis at the Quirindi Saleyard for Elders, in addition to his caretaker roles on properties in the district, I would suggest that, at this time, Mr Doolan remains relatively competitive with regard to the particular rural labour market within which he appears to operate reasonably successfully at present. Indeed, this employment context does appear to be compatible with his background and skill development.
I would not be as optimistic regarding his competitiveness if he had to change employment contexts and learn new skills and partially this concern would be related to his apparently limited capacity to adapt to new situations and change. It does appear to be the case the reduced capacity is derived more from his personality and work style, rather than any cognitive factors." (T11, p60/61)
As a consequence of the report from Mr Lucas, Dr Reading on 24 July 1998 concluded that the Applicant had a combined impairment rating of nil points and that he was fit for light work full-time (T9, p53).
In a report dated 26 April 2000, Mr Lincoln, a senior rehabilitation consultant with CRS Australia made the following comments:
"Outcome of Rehabilitation.
Some new work goals were identified, and confirmed with the treating doctor. Suitable new works options identified: Groundsman, gardener, lawn mower, general assistant, with restrictions identified by Dr Thatcher.
Restrictions included the need to take medication, take rest breaks if needed, and to avoid heavy strenuous work, and long periods of working in direct sunlight.
Mr Doolan demonstrated that he was able to work for 8 hours per day as a General Assistant at Quirindi High School, performing outdoor and building maintenance tasks. It should be noted, however, that this was a supportive work environment, and Mr Doolan was able to take breaks if required. Also, he worked by himself, thereby being able to select his work tasks and work at his own pace.
Overall, however, he demonstrated an ability to work as a General Assistant. The Work Trial ran from 13 September to 17 December 1999. Mr Doolan commenced this for 4 hours per day, and increased to 8 hours per day by the end of the trial.
Our next proposed steps were to assist Mr Doolan to apply for suitable paid jobs. However, shortly after the trial concluded, Mr Doolan's health deteriorated and he experienced an increased number of seizures.
Our liaison with Dr Thatcher indicated that she was trialing some new combinations of medications to stabilise Mr Doolan's health, however, he remained unwell and unfit for any work for a number of weeks, and we agreed to close his rehabilitation program on 21 March 2000.
Other comments:
Mr Doolan has impressed me with his sincerity and desire to return to work and to be able to support himself. The recent decline in his physical health and the lack of clarity with his medical treatment has been very frustrating for him. He has impressed me as an honest and hardworking man who would ideally like to return to work if at all possible.
Clearly, he cannot do so in his present state of health. From his diary, he has reported 11 seizures this year, and the timing and triggers for these are not clear.
From a vocational point of view, he is highly unlikely to gain paid work again unless there is significant improvement in his health." (Exhibit A1)
SUBMISSIONS:
The Applicant in this matter contends that his impairments of epilepsy, memory loss and deformity of his right arm do prevent him from doing many activities in the workplace. It is his contention that his epilepsy is no longer a stable condition and that he is having more frequent attacks. Further, it is his contention that the assessment of the epilepsy at the time would result in an impairment rating far greater than that given by Dr Reading.
The Applicant further contends that he is not an unwilling worker, as indicated by his work history and he has a desire to work. However the Applicant stated that he currently is prevented from doing so on account of the increased frequency of his seizures, and the reticence of local employers to give him employment.
The Respondent, while acknowledging the increasing frequency of the Applicant's seizures in 1999 and 2000, contends that the assessment undertaken in mid 1998 was congruent with the clinical information available at that time and that the decision to cancel the Applicant's disability support pension was correct.
CONSIDERATIONS AND FINDINGS:The Tribunal considering this matter notes the following relevant legislation, namely subsections 94 (1) in part, (2), (3), (4) & (5).
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;…
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.
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.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.
In this section:
education or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments.
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.
In preliminary comment, the Tribunal observes that the effect of subsection 100(3) of the Act is to limit the Tribunal's deliberations in a temporal sense, with the prime focus being placed upon the material in evidence leading up to the decision to cancel the Applicant's disability support pension in August 1998 and for a period of three months thereafter. Material which falls outside this operative period may be used by the Tribunal for the purpose of assisting the Tribunal in understanding the Applicant's impairments during this operative period.
The Tribunal in further comment is appreciative of the frankness and clinical and temporal detail with which the Applicant presented and tabled his evidence – evidence which in the Tribunal's view has demonstrated a marked deterioration in the stability of the Applicant's epilepsy. Further the Tribunal acknowledges the Applicant's desire to return to work and the frustration he is experiencing as a consequence of the difficulties in stabilising his epilepsy.
In assessing the Applicant's evidence, and that of his treating practitioner together with the opinions of Dr Reading and Mr Lucas, the Tribunal finds that the Applicant does have the following conditions, with associated clinical features.
(a)Epilepsy – grand mal and petit mal – Commenced in 1977 with good stability 1991 -1998. More unstable 1999 –2000.
(b)Deformity of right arm and wrist – Multiple fractures of right humerus, osteomyelitis and fractured right radius. Deformity and limited ability to write and lift with right hand.
(c)Memory loss – occurs when Applicant is anxious, minimal.
As a consequence of the Tribunal's findings as to impairments, the Applicant is found to satisfy subsection 94(1)(a) of the Act.
In turning to the assessment of the impairments, the Tribunal makes the following appreciation of each impairment.
(a)Epilepsy: Commenced 1977, controlled over time with medication, seizures are of a grand mal and petit mal character. No AURA. Stabilised 1991 – 1998 with only four seizures recorded by Applicant in 1998, less in the previous four years. The Tribunal, having heard the Applicant's description of a seizure determines that the Applicant has an ictal and postal ictal stage in his grand mal seizures. In turning to the year (1998) in which the decision was made the Applicant had one seizure in the second quarter and three seizures September through December. The Tribunal also notes that the Applicant described that a seizure may occur when he is asleep, the evidence being incontinence and post ictal clinical features.
For the ictal stage the Tribunal finds that the Applicant has an impairment rating of nil points under table 21.4 of the Schedule 1B Impairment Tables. In arriving at this rating the Tribunal concludes that the Applicant has level 6 under table 21.1, medium under table 21.2, I under table 21.3 leading to a nil points rating under table 21.4 (4 episodes in 1998).
For the post ictal stage the Tribunal concludes that the Applicant has an impairment rating of nil points under table 21.4, the components being table 21.1, level fair, table 21.2, prolonged, table 21.3 G, frequency under 21.4 - 5+.
The Tribunal in making such an assessment, is particular in reinforcing the point that such an assessment is made for the operative period in this matter, and bears little relationship to the Applicant's circumstances at the time of the hearing.(b)Right arm impairment
The Tribunal considers that he Applicant has a nil points impairment under Table 3 of the Schedule 1B Impairment tables in that the Applicant is able to use his dominant limb effectively and while having a demonstrated loss of strength and mobility of his right arm, it causes only mild interference with hand function or manual handling.
(c)Memory loss
The Tribunal finds that the Applicant has a nil points rating under table 3 in that his symptoms of memory loss are mild and cause minimal interference with his everyday functions. The Tribunal relies on the report of Mr Lucas dated 16 July 1998, where his assessment did not support any significant memory impairment.
In summary the Tribunal finds that he Applicant at the relevant time in this matter had a combined impairment rating of nil points under the Schedule 1B Impairment Tables. The Tribunal further finds that the Applicant does not satisfy subsection 94(1)(b) of the Act.
In considering whether the Applicant had a continuing inability to work at the operative time, the Tribunal considered the statement of the Applicant of 23 April 1998, and in particular his listing of the difficulties caused by his disabilities, namely writing, remembering and concentrating; the opinion of Dr Reading, and in part the opinion of Dr Redmayne of 29 April 1997 where he opined the Applicant could undertake part-time stock work or light farm work. As a result of these considerations the Tribunal concludes that at the time in question the Applicant did have the ability to undertake light work on a full-time basis of 30 hours per week.
The Tribunal further finds that the Applicant's impairments do not of themselves, prevent him from undertaking educational, vocational or on-the-job training programmes. The Tribunal also finds that having undertaken such a program, the Applicant's disabilities are unlikely to prevent the Applicant from doing any work within the next two years.
As a consequence of the Tribunal's findings, the Applicant fails to satisfy subsection 94(1)(c)(i) of the Act in that the Applicant does not have a continuing inability to work as defined by subsection 94 (2)(a) and (b) of the Act.
In failing to satisfy subsection 94(1)(b) and (c)(i) of the Act the Tribunal finds that during the operative period the Applicant does not qualify for a disability support pension.
DETERMINATION:The decision under review is affirmed by the Tribunal.
I certify that the preceding 35 paragraphs are a true copy of the reasons for the decision of :
Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 3 May 2000
Date of Decision 18 September 2000
Self represented Applicant
Advocate for the Respondent Ms A Alex
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