Dutfield; Secretary, Department of Family and Community Services

[2002] AATA 200

DECISION AND REASONS FOR DECISION [2002] AATA 200

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/866

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      Secretary, Department of Family and Community Services         
  Applicant
           And    Mr Leslie Dutfield  
  Respondent

DECISION

Tribunal       Ms N Bell, Member

Date27 March 2002 

PlaceSydney

Decision      The Tribunal sets aside the decision under review, being the decision of the SSAT dated 15 May 2001, and in substitution therefor determines that Respondent does not qualify to receive disability support pension pursuant to section 94 of the Social Security Act 1991.

..............................................
  Ms N Bell
  Member 
CATCHWORDS
SOCIAL SECURITY – disability support pension – physical impairment – whether Respondent has an impairment rating of 20 points or more – continuing inability to work

Social Security Act 1991 – section 94

REASONS FOR DECISION

Ms N Bell, Member            

1. This is an application by the Secretary to the Department of Family and Community Services ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("SSAT"), made on 15 May 2001, that Mr Leslie Dutfield ("the Respondent ") is qualified to receive disability support pension. The SSAT set aside the decision by a delegate of the Applicant dated 28 July 2000, which rejected the Respondent's claim for disability support pension. This original decision was reviewed and affirmed by an authorised review officer on 11 September 2000.

2. The Applicant was represented by Mr John Kenny and the Respondent appeared unrepresented.  The Respondent gave oral evidence to the Tribunal.  The following documentary evidence was before the Tribunal:
   Exhibit No     Description    Date   
   T1 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents")
   A1      Applicant's Statement of Facts and Contentions          5 March 2002           
   A2      Report of Karen Lang, Orthoptist  23 August 2001       
   A3      Report by Dr Smith  23 August 2001       
   A4      Medical Assessment by Dr Aus    25 September 2001
   A5      Letter of Dr Sebban, Opthalmologist       11 December 2001 

Legislation

1. The legislation relevant to this application is section 94 of the Social Security Act 1991 ("the Act"). Section 94(1) provides:

   "Qualification for disability support pension—continuing inability to work
   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;

   (ii)       the 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."

2. Section 94(2) of the Act defines the term "continuing inability to work".
   Issues

3. There is no dispute that the Respondent has a physical impairment. He therefore satisfies the requirement in section 94(1)(a). The remaining issues are whether the Respondent has an impairment rating of 20 points or more under the Impairment Tables in Schedule 1B to the Act (section 94(1)(b)) and, if so, whether the Respondent has a continuing inability to work (section 94(1)(c)).

   the twenty point requirement

4. In order to determine the first issue, that is, whether the Respondent has an impairment that attracts a rating of at least 20 points under the Impairment Tables, it is necessary to look to the medical evidence.  That evidence can be summarised as follows.

5. Karen Lang, Orthoptist, following an assessment on 23 August 2001, gave the following opinion in Exhibit A2:

   "Mr Dutfield has an eye condition known as Lebers Optic Atrophy which is an inherited eye condition characterised by progressive loss of central vision, most commonly in both eyes but in some cases unilaterally.
   Mr Dutfield has vision in the order of Count Fingers at a distance of 30 centimetres in the right eye and 6/9.5 in the left eye.  This is considered near normal vision for this eye.  Vision improves slightly to 6/7.5 when both eyes are working together."

1. Dr Sebban, Mr Dutfield's treating Opthalmologist, after receiving Ms Lang's report, wrote in Exhibit A5:

   "I completely agree with every part of your report.  He does have central visual loss which is affecting only part of his central vision and he is very much restricted centrally.  And as you state in the final words of the letter, active scanning should enable him to negotiate his environment safely and he should be able to obtain some sort of employment as his vision impairment still allows for some considerable useful vision
   I do agree he does not classically fit the Table given to us with regard to the degree of vision affected…"

1. Dr Sebban's report of 19 February 2001 (T10) he had said:

   "He has a hsitory of Leber's optic atrophy which has resulted in bilateral central scotomas with his right eye being significantly affected.
   Computerised perimetry demonstrates the significant central visual loss which involves approximately 30-40 degrees of his central vision.
   His visual acuity in the left eye is 6/6 because the central field defect on the left eye is superior and this is well noted on the visual field."

1. On the basis of Ms Lang's report, Dr Aus of Health Services Australia concluded on 25 September 2001 in Exhibit A4:

   "Mr Dutfield is aged 51 and has an eye condition causing loss of central vision.  He has very low vision in his right eye and has slightly reduced vision in the right (sic) eye.  With binocular vision (corrected) he attains near normal vision.
   His condition should not be assessed on table 15, since he does not have CONSTRICTION of visual fields, ie from peripheral to central vision, but rather enlargement of the central "blind spot" that is present in everyone.  Ocular scanning can compensate for a large amount of this central field loss, and the left eye has essentially normal vision.
   I have therefore rated the condition on table 14 considering the visual acuity in the right eye to be very low.
   Mr Dutfield is fit for a wide range of occupations as considered in the specialist report."

1. Dr Aus characterised Mr Dutfield's disability as "loss of stereoscopic vision- very low vision in right eye" and allocated an impairment rating of 5 points under Table 14 of the Impairment Tables in Schedule 1B to the Act.

2. Ms Lang's report described very low vision in Mr Dutfield's right eye and near normal vision in his left eye.  This assessment was supported by Dr Sebban, Mr Dutfield's treating specialist and was adopted by the Health Services Australia medical officer, Dr Aus.  The Tribunal finds therefore that Mr Dutfield has very low vision in his right eye and near normal vision in his left eye.

3. There are three tables in Schedule 1B that deal with vision. They are Tables 13, 14 and 15. Table 13 deals with visual acuity or sharpness of vision. Dr Sebban's report has Mr Dutfield with 6/6 visual acuity in his left eye. That would give him an impairment rating of 0 points. Even on Ms Lang's more generous assessment of 6/9.5 Mr Dutfield would be rated at 0 points.

4. Table 15 deals with visual fields and degrees of constriction of those fields.  No specific rating is given for central field loss.  The Tribunal notes Dr Aus' conclusion that Mr Dutfield's loss of vision does not involve any constriction of visual field but rather an enlargement of the "blind spot" that is present in everyone.  Table 15 therefore has no item that can be applied to the Respondent's particular condition.

5. Table 14 is headed "Miscellaneous Eye Conditions" and provides as follows:

   "TABLE 14.     MISCELLANEOUS EYE CONDITIONS
    Visual Disturbance   Rating

   Squint (Heterophoria):  Latent  0
    Squint (Heterotropia):  Without diplopia                 0

   Acquired Heterotropia (squint) with diplopia:          
             one quadrant of upward gaze   5
             all directions of upward gaze  10
             one quadrant of downward gaze                  10
             one direction of sideways gaze                  10
             both directions of sideways gaze                10
             all directions of gaze  20
             all directions of downward gaze                   20
             all range of near vision            20
    Constant irritation of eyes, photophobia,
    epiphora, ectropion or entropion         0
   Gaze defects (vertical and/or horizontal)                 10
    Glaucoma without visual loss            0
    Longstanding Blepharospasm           10
    Loss of stereoscopic vision in absence of squint    
             Permanent (eg. blind in one eye)                5
             Intermittent (eg. ptosis or tarsorrhaphy)        10
    Nystagmus without diplopia    Rate as for visual acuity
   Retinal Dystrophy with night blindness                  Rate as for visual acuity and visual fields
   …"

6. Dr Aus adopted "loss of stereoscopic vision – permanent" and the corresponding impairment rating of 5 points under Table 14 as the most appropriate characterisation of the Respondent's impairment.  The Tribunal agrees.

7. It follows that, in the absence of any medical evidence of other conditions, with an impairment rating of 5 points, the Respondent does not satisfy the requirement in section 94(1)(b) of the Act and therefore does not qualify to receive disability support pension.

   continuing inability to work

8. Given the Tribunal's conclusion in relation to the Respondent's impairment rating, it is not necessary to reach a conclusion about the Respondent's ability or otherwise to work.  However, the Tribunal notes the Respondent's evidence of the difficulties he has encountered in doing night work and in performing the tasks required of him at his last employment.  The Tribunal also notes the Respondent's evidence of the assistance he has received from the Royal Blind Society in the form of red stickers for placement on appliances dials, and large point type pamphlets concerning "Pouring Safely", "Shaving the Face", "Marking Clothes" and "Lighting".  The Respondent also gave evidence of his reliance on friends for assistance with such tasks as shopping.

9. During the course of his evidence, Mr Dutfield noted that he has an appointment this month to see a Respiratory Physician in relation to breathing difficulties he has been experiencing.  He also mentioned that he is currently taking medication for anxiety or depression.  However, he was unable to name the medication he takes. The Tribunal strongly suggests to Mr Dutfield that, after he has obtained a diagnosis of his respiratory condition, he test his qualification for disability support pension again, raising all of his conditions. In order to do so, Mr Dutfield will need to provide medical opinions, on the forms made available by Centrelink for claiming disability support pension, from his treating doctors in respect of all of his conditions.
   Determination

10. The Tribunal sets aside the decision under review, being the decision of the SSAT dated 15 May 2001, and in substitution therefor determines that Respondent does not qualify to receive disability support pension pursuant to section 94 of the Social Security Act 1991.

    I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

    Signed: O. Caragianni            .....................................................................................
      Associate

    Date/s of Hearing  11 March 2002
    Date of Decision  27 March 2002
    Advocate for the Applicant      Mr J Kenny
    Self-represented Respondent