Elton and Department of Family and Community Services
[2000] AATA 343
•3 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1890
GENERAL ADMINISTRATIVE DIVISION )
Re COLIN ELTON
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell
Date3 May 2000
PlaceSydney
Decision The Tribunal determines that the decision under review should be set aside, as the finding was based on a misapplication of impairment tables and in substitution there for the Tribunal affirms the decision to cancel the Applicant's disability support pension effective 25 June 1998.
………………………………..
Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Cancellation – Multiple Impairments – Assessment – Inability to work
Social Security Act 1991, sections 94(1), (2), (3), (4) (5), 100(3), shedule 1B
REASONS FOR DECISION
Dr J D Campbell
Colin Elton ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("SSAT") dated 9 December 1998, which affirmed the decision, of an authorised review officer of Centrelink dated 23 September 1998. This latter decision affirmed the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 14 May 1998 to cancel the Applicant's disability support pension with effect 25 June 1998.
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Kempsey on 19 January 2000 at which the Applicant, being self-represented, gave evidence. The Respondent was represented by Ms Alex, an advocate from the Administrative Law Section of Centrelink.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Series of x-ray reports Re Applicant dated August/September 1999 Medical Report of Dr Johnston dated 21 October 1998 Medical Report of Dr Smith dated 22 September 1999 Respondent's Statement of Facts and Contentions dated 22 September 1999 T1-T21 P1-75 Exhibit A1 Exhibit A2 Exhibit A3 Exhibit R1
ISSUES
The relevant issues in this matter are whether the Applicant had:
a) physical, intellectual or psychiatric impairments; and
b) such impairments are assessed as having a combined rating of 20 percent or more under the Schedule 1B tables for assessment of impairment for disability support pension ("Impairment Tables"); and
c) a continuing inability to work for 30 hours per week at or above award wages within the next two years; and either
i) the impairments prevent him from undertaking educational or vocational or on-the-job training during the next two years; or
ii) that despite being able to undertake such training, training, because of the impairments is unlikely to enable the person to do any work within the next two years.
LEGISLATION
The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2), (3), (4) and (5) and 100(3) and the Schedule 1B Impairment Tables pre 1 April 1998.
BACKGROUNDThe Applicant had applied for and had been granted invalidity pension in 1985. A medical review was initiated in October 1997 which resulted in the Applicant's disability support pension being cancelled with effect from 25 June 1998 (T13). A review by an authorised review officer in September 1998 confirmed the decision that the Applicant did not have a continuing inability to work. The SSAT affirmed these earlier decisions on 9 December 1998 for the reason that the Applicant's combined impairment rating was less than 20 points under the Schedule 1B Impairment Tables, as amended from 1 April 1998
EVIDENCE
MR COLIN ELTON – THE APPLICANTThe Applicant, in the completion of his review form regarding medical and other information on 7 November 1997 (T9) stated that he had had his left hip replaced because of osteoarthritis in 1987 and, that he had had his right elbow operated on in 1993 or 1994 for osteoarthritis. He had fluctuating blood pressure, allergy problems, a hiatus hernia and problems with his back, particularly his lower back.
As a result of the impairments the Applicant recorded that he often had difficulty standing or sitting for long periods and sometimes had difficulty with walking and getting on and off public transport. Further he recorded difficulty with lifting and carrying, because of his back and elbow and sometimes difficulty with bending and operating appliances solely because of his back. The Applicant further recorded that he had no problems with reading, writing, speaking, hearing, concentrating and remembering but sometimes had difficulty in interaction with others, attending work or other appointments or understanding or following instructions. Finally the Applicant recorded having difficulty with sleeping (hip) and breathing (nasal passage blockage) (T9, p33).
At the hearing at Kempsey, the Applicant told the Tribunal that he was born in 1958, educated to year ten (which he passed) and left school at the age of 16, after which he spent four years trying to find a job in Kempsey. The Applicant stated that in 1978 he went to Mt Wilga for assessment and rehabilitation, and for nine months he undertook some light factory work, packing books. The Applicant stated that in 1980 he secured a job as a metal press operator in Thornleigh, a position he held until 1984 when he left because of ill health. The Applicant stated that in 1985 he was having increasing trouble with pain in his left hip and left knee, and that this gradually worsened over the next two years, despite medication, acupuncture and particular exercises. The Applicant stated that in 1987 he underwent a left hip replacement, and because of a pulmonary embolus he spent some two months in hospital. After the operation he found the walking in Sydney difficult, but this settled down over time.
The Applicant stated that in 1988 he moved back to Kempsey. Since then his left hip has been a little weak at times and has given occasional trouble, locking five to six times a year, and on an occasion has partially dislocated which causes him to use a walking stick. In his domestic arrangements, the Applicant stated that he had been sharing a house with a companion for the last four and a half years. The Applicant does all of the cooking, vacuuming, washing, hanging of washing on the line, shopping, ironing and usually makes the bed. The Applicant's companion cleans the bath as the Applicant has difficulty arising from the floor. The Applicant further stated that he spends the day reading, listening to CD's, watching television and videos, drinks little alcohol, does not smoke and has tried jogging and swimming. He stated that he is able to walk for 20 to 30 minutes, does not drive a car, catches public transport to the shop, and has groceries delivered and the lawn cut by a contractor.
The Applicant told the Tribunal that he has the following impairments and described the following clinical features of each:
Hypertension Hay fever and sinusitis Right elbow Lower Back Cervical spine Left elbow Hearing Hiatus hernia Valvular heart disease Right hip Ankles On medication, variable control. Has a deviated septum and takes periactin inocte. Resulted from an accident on a South Pacific Cruise in 1980/81; dislocated right elbow; limitation of extension to 30o; operation for osteoarthritis in 1984; can only lift up to five to ten kilograms; nerve in right arm gets caught causing numbness in his fingers for two to three minutes. Since 1995 some locking of his lower back when he bends over, approximately five to six times per year causing some pain on the waist line posteriorly; enjoys a good range of back movement when his back is not playing up; sleeps poorly. Cracks a lot with sometimes a sharp pain down to his left shoulder; has had headaches for years. Some pain on occasions – arthritis. Little difficulty left ear; perforated ear drum right ear which occurred a few years ago. Commenced eight to ten years ago after operation on his hip; unable to tolerate fruit juice; appetite variable; on no medication at this time, but takes Maxalon as required. Believes he has some deterioration of his mitral valve. Minor trouble over the last few years and is self treated by resting for a few days. Left ankle is a little weak following an inversion injury at Mt Wilga in 1979; has difficulty using a spade and as such cannot do any gardening.
In discussing his ability to work, the Applicant told the Tribunal that he would like to work, but is afeared that his hips may cause him difficulties. He would like to receive some more training, having completed two computer courses at TAFE with good results and a demonstration of good memory, but he is not prepared to move from Kempsey. In answer to questions in cross examination, the Applicant acknowledged that he last worked in late 1983 and that he left the job because of a personality clash with his superior, who he found to be "overbearing, pig headed and arrogant". The Applicant admitted to undertaking voluntary odd jobs at a café and plant shop for short time periods, and despite his "short fuse" he has demonstrated his ability to get on with people in the last two courses at TAFE.
MEDICAL EVIDENCEIn his treating doctor's report of 10 December 1997 (T10), Dr De Silva describes the Applicant's conditions and associated clinical features as:
Condition Clinical Features
Mild pain in left hip Hypertension Bilateral arthritis both elbow joints Chronic sinus problems and many minor complaints Left hip replacement at age 29 as a result of dysplasia. No symptoms right hip. Some pain in lower back. Family history of hypertension. Mild hypertension controlled easily. Osteoarthritic changes in both elbow joints with limitation of full extension right elbow. He has a full range of flexion and adequate rotation and excellent muscle strength. Giddy spells, many subjective complaints, gastritis – lot of psychogenic overlay.
In further comment, Dr De Silva considered the conditions long term and stable.
In relation to the Applicant's ability to work, Dr De Silva made the following comments:
"He does not wish to work and there is no work for his level of education.
He does various 'jobs' for various people.
He has no interest in doing any work as he is better off as an invalid pensioner.
If you can find some work suitable for him (commenting on the opinion that the Applicant could return to work now)
He is a talkative, pleasant chap and I think he would be useful somewhere!" (T10, p39)
In considering the Applicant's disabilities and any affect that they may have on the ability to perform work over the next two years, the only areas in which Dr De Silva believed the Applicant may experience difficulty are in his work attendance (two to three days per month absence); object manipulation (some discomfort): and carrying and moving objects (reduced speed) (T10, p40).
In a report dated 10 February 1999, Dr Bernotas, the examining Health Services Australia medical officer, concluded:
"This 39 year old factory process worked has been on DSP since 1985. He underwent total hip replacement in 1987 for severe osteoarthritis on the left side. This has been quite successful with insignificant restriction to walking on even ground but severe difficulty with stairs and transient stiffness after sitting for a prolonged period. Fracture dislocation of the right (dominant) elbow restricts heavy or repetitive use but it is in a position of function with a reduction of 30o to full extension. Some lumbar degeneration restricts heavy manual work and repetitive bending but it appears to be a relatively mild problem. His other medical complaints are functionally insignificant. The total impairment is 20%. In my opinion he could do light work full time that was not highly repetitive with the right arm and did not require good mobility." (T11, p56)
A series of x-rays were taken on 30 August 1999 and Dr Nolan, a radiologist, reports an absence of any renal tract calcification, no evidence of loosening of prosthesis in the left hip, no significant bone or joint abnormality in the right hip, pelvis, right knee and left knee. Degenerative changes were noticed at all levels of the lumbar spine, no evidence of active lung disease and degenerative changes and facet joint osteoarthritis is present at multiple levels of the cervical spine (Exhibit A1).
In a report dated 11 October 1998, Dr Johnston, a consultant physician, concluded that the Applicant "had a mild mitral valve prolapse, which may account for some of his chest pain." (Exhibit A2)
In a report dated 22 September 1999, Dr Smith, a general practitioner, summarised the Applicant's long history of medical investigation and diagnosis and impairments and concluded:
"This person has a number of disabilities which combined leads him to an impairment or group of impairments which in themselves is preventing this person from doing any work within the next two years. This also prevents him from undertaking routine and structured educational or vocational training or on the job training in the next two years. This man has sufficient capacity to look after himself and his companion in the house where he lives but certain types of cleaning activities such as cleaning the bath is very distressing and painful and he cannot do this." (Exhibit A3)
SUBMISSIONS
The Respondent in preliminary submission stated that the Applicant had a number of impairments, and concluded that the combined rating for these impairments is 20 per cent or greater at the operative time at which the decision was made to cancel the Applicant's disability support pension.
Nevertheless the Respondent contended that the very evidence of the Applicant, that he could do odd jobs for people and that he had successfully undertaken the TAFE computer courses and indeed was enrolled for further courses, coupled with the assessments and opinions of Dr De Silva and Dr Bernotas at the operative time, clearly indicates his continuing ability to work and certainly indicates an ability to undertake educational, vocational or on the job training, despite any opinion Dr Smith may have to the contrary. As such the Respondent contends that the Applicant's disability support pension was correctly cancelled in 1998.
The Applicant's submissions in support of restitution of his disability support pension can best be summarised as:
a) he has a number of impairments, they are long standing and deteriorating and the Respondent has recognised that they do have a combined impairment rating of 20 per cent or more; and
b) his ability to work is limited to do odd jobs for a short period of time when he is able. He admits that he likes to help out, but continued or prolonged activity produces consequences in relation to his various impairments; and
c) while enjoying his TAFE activities and being proud of his results, he is of a view that because of his impairments, any training will not help him secure a job which he can maintain.
CONSIDERATIONS AND FINDINGS
In preliminary comment the Tribunal notes that subsection 100(3) limits consideration to evidence available at the time of cancellation or within a three month time frame thereafter and any earlier or subsequent evidence which can assist the Tribunal in obtaining a greater appreciation of issues , evidence and opinions at the relevant time.
In further preliminary comment, the Tribunal notes the nature of many of the Applicant's impairments, and the fact that many will continue to be subject to a degenerative process over time, and will obviously be the subject of many further considerations, but the Tribunal is bound to address the impairments and their effect upon the Applicant's ability to work as they stood at the time.
The Tribunal in further considering this matter notes the following relevant legislation, namely subsections 94(1) in part, (2), (3), (4) and (5).
"94 Qualification for disability support pension
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;
…
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 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:
educational 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:
(i) that is for at least 30 hours per week at award wages or above, and
(ii) that exists in Australia, even if not within the person's locally accessible labour market."
The Tribunal acknowledges the concession made by the Respondent that the Applicant has a combined impairment rating of 20 per cent under the pre April 1998 Schedule 1B Impairment Tables. The Tribunal notes that any combined impairment rating given by the Social Security Appeals Tribunal was arrived at after consideration of the post April 1998 Impairment Tables. As the matter being considered had the medical assessments performed pre 1 April 1998, the Tribunal finds that the appropriate Schedule 1B Impairment Tables were the pre 1 April 1998 tables. Accordingly and in the light of the concession, which indeed relied upon the medical opinion of Dr Bernotas, the Tribunal finds that the Applicant had a combined impairment rating of 20 per cent and as a consequence has satisfied subsections 94(1)(a) and (b) of the Act.
In considering the issue of whether the Applicant has a continuing inability to work at the operative time, the Tribunal has:
a) paid close attention to the description of the Applicant's impairments and the respective clinical features as described by the Applicant and Drs De Silva and Bernotas;and
b) acknowledged the opinions of Dr De Silva and Bernotas in relation to the effect of the Applicant's impairments on his capacity and/or ability to work and also on their opinions as to the nature of work that the Applicant could do forthwith; and
c) given particular attention to the opinions expressed by Drs De Silva, Bernotas and Smith as regards the Applicant's ability to undertake educational, vocational or on-the-job training; and
d) reflected upon the activities of the Applicant and his statements relating to odd jobs, his current activities and the obvious enjoyment he has experienced as a result of his successful undertaking of two TAFE computer courses, and his enrolment in further TAFE activities; and
e) accepted the various radiological findings as nominated by Dr Nolan in his report of August 1999; and
f) appreciated the clinical summary and opinion provided by Dr Smith in September 1999 of the Applicant's many impairments.
As a consequence of such considerations, the Tribunal finds that the Applicant did not have a continuing inability to work at the period, in that, despite an impairment rating of 20 per cent, the Applicant's impairments did not prevent him from undertaking a range of light semi-skilled or lesser-skilled work categories for 30 hours per week at or above award wages. In so finding the Tribunal has given weight to the opinions of Drs De Silva, the treating general practitioner and Dr Bernotas that the Applicant, despite any restrictions that arise from his impairments, has a clearly defined work ability. In noting the contrary opinion of Dr Smith, the Tribunal observes that the opinion is associated with the compilation of medical evidence collated in excess of a year after the operative period of time for consideration. The Tribunal concludes that such an opinion is more relevant to future considerations upon a further application.
Further the Tribunal finds that the Applicant's impairments at the operative time did not in themselves prevent the Applicant from undertaking vocational or educational or on-the-job training during the next two years, and further that such training is not unlikely (because of the impairments) to enable the Applicant to do any work within the next two years. In making such a finding the Tribunal has relied upon the evidence of the Applicant in relation to the clinical features of his impairments and the restrictions they bring to his work ability and further his successful completion of TAFE computer courses and his ability to do odd jobs. Further the Tribunal has relied upon the findings and opinions of Drs De Silva and Bernotas found and formed at the operative time. Again the Tribunal has given much less weight to the opinion of Dr Smith as it was formed at least one year after the defined time period.
As a consequence of the Tribunal's findings, the Tribunal further concludes that the Applicant has failed to satisfy subsection 94(1)(c), in that the Applicant has failed to satisfy subsection 94(2)(a) (continuing inability to work) and either subsection 94(2)(b)(i) (prevention of training) or subsection 94(2)(b)(ii) (unlikelihood of work despite training).
Accordingly the Tribunal finds that the decision to cancel the Applicant's disability support pension with effect 25 June 1998 was correct. Further the Tribunal finds that the decision of the Social Security Appeals Tribunal must be set aside for the reasons associated with misapplication of Schedule 1B Impairment Tables as discussed in paragraph 26.
DETERMINATIONThe Tribunal determines that the decision under review should be set aside, as the finding was based on a misapplication of impairment tables and in substitution thereof the Tribunal affirms the decision to cancel the Applicant's disability support pension effective 25 June 1998.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell
Signed: .....................................................................................
AssociateDate/s of Hearing 19 January 2000
Date of Decision 3 May 2000
Representative for the Applicant Self-Represented
Representative for the Respondent Ms A Alex, departmental advocate
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