Fisher and Secretary, Department of Family and Community Services
[2005] AATA 1165
•24 November 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1165
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2005/196
GENERAL ADMINISTRATIVE DIVISION
Re: DENNIS FISHER
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES
Respondent
DECISION
Tribunal: Mr C. Ermert, Member
Date: 24 November 2005
Place: Melbourne
Decision: The decision under review is affirmed.
(sgd) C. Ermert
Member
SOCIAL SECURITY – qualification for disability support pension – physical impairment rating – continuing inability to work
Social Security Act 1991 s 94
REASONS FOR DECISION
24 November 2005 Mr C. Ermert, Member
INTRODUCTION
1. Mr Fisher suffered a work accident which resulted in an injury to his knee. This subsequently required knee replacement surgery which has turned out to be only partially successful in that he continues to have pain. After the surgery he developed diabetes mellitus with complications. He also suffers from other medical conditions. As a result of his conditions Mr Fisher suffers pain, a reduced mobility and a difficulty lifting weights. He contends that as a result of his impairments he is unable to work and has submitted a claim for a Disability Support Pension to Centrelink. Centrelink is the service delivery agent for the Department of Family and Community Services. His treating doctor and his treating orthopaedic surgeon have reported that he is unable to work and Mr Fisher has not worked since the accident.
2. Centrelink had Mr Fisher’s ability to work assessed by a senior occupational therapist. The occupational therapist found that Mr Fisher suffered the functional effects he claimed, but not to the extent that they prevented him from returning to work. Mr Fisher’s claim was rejected by a Centrelink delegate because his impairment was assessed at less than 20 points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables) in Schedule 1B of the Social Security Act1991 (the Act). That decision was reviewed by an Authorised Review Officer, who affirmed the decision. Mr Fisher then sought review by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the decision to reject the claim and Mr Fisher sought review of the decision by this Tribunal.
THE ISSUES
3. Qualification for disability support pension is contained in s 94(1) of the Act. The relevant issues in this matter are:
· Does Mr Fisher have a physical impairment, and
· Is the impairment of 20 points or more under the Impairment Tables, and
· Does Mr Fisher have a continuing inability to work?
4. The standard of proof for the consideration of these issues is on the balance of probabilities.
Does Mr Fisher have a physical impairment?
5. The respondent accepts that as at the date of claim, 17 September 2004, and within 13 weeks of that date, Mr Fisher suffered from the following permanent medical conditions:
· Diabetes mellitus and complications,
· Hypertension,
· Osteoarthritis,
· Hyperlipidaemia, and
· A knee injury.
6. There is no dispute about the medical conditions claimed. The question is whether the conditions should be assessed at 20 points or more under the Tables, and whether, as a result of the medical conditions, Mr Fisher has a continuing inability to work.
Is the impairment of 20 points or more?
7. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work-related tasks, and do not take into account the broader impact of a functional impairment in a societal sense. No specific adjustments are made for age and gender.
8. The Tables are designed to assess impairment in relation to work and assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. The Tables are function based rather than diagnosis based. The measures represent efficiency in performing defined functions in comparison with a fully able person. Ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.
9. For a rating to be assigned, the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The condition must be considered to be permanent; that is, that it is more likely than not that it will persist for the foreseeable future. A condition may be considered fully stabilised if it is unlikely that there will be any significant improvement, with or without reasonable treatment, within the next two years.
10. In summary, for an impairment to considered for disability support pension the condition must be:
· Fully documented and diagnosed,
· Investigated, treated and stabilised,
· Permanent (persist for more than two years), and
· The loss of work related function is rated at 20 or more in the tables.
11. These criteria are now applied to each of the accepted impairments.
Diabetes Mellitus and Complications
12. In his report of 30 March 2004 Dr Galbraith stated the onset of Insulin Dependent Diabetes to be October 2001. The complications associated with the diabetes are reported as peripheral neuropathy and retinopathy. There is no dispute between the parties that the conditions are fully documented and diagnosed and are permanent. There is a question as to whether the condition is stabilised.
13. In his evidence Mr Fisher contended that the condition of diabetes mellitus was not stabilised because his blood sugar levels were increasing and his treating doctor had recently prescribed a medication in addition to those previously prescribed. The Medication Summary as at 26 July 2005 (Exhibit A5) shows the addition to his medications of ACTOS, which was not included in the previous Medication Summaries. Ms Navarro submitted that the issue of Mr Fisher being prescribed additional medication relates to his current condition, not the condition pertaining at the date of claim (17 September 2004) nor within 13 weeks of the date of claim.
14. Other reports relevant to this issue are:
· A Treating Doctor’s Report by Dr Galbraith, dated 30 March 2004 in which he states Insulin Dependent Diabetes…requires regular insulin; and estimates that the current impact on ability to function expected to persist for more than 24 months; and within the next two years the ability to function is expected to deteriorate;
· A medical report by Dr Tutton, dated 28 April 2004 in which he states…his diabetes mellitus is well controlled…; and
· A Work Capacity Assessment by Ms Hall-Wiggins, dated 6 June 2005 in which she says …Condition is well controlled with medication and diet.
15. The Introduction to Schedule 1B provides guidance regarding the assessment of whether a condition is fully diagnosed, treated and stabilised. Regard is to be had to:
· What treatment or rehabilitation has occurred;
· Whether treatment is still continuing or is planned in the near future; and
· Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
16. Dr Galbraith’s report indicates ongoing treatment with insulin with no indication of plans for a cessation. He also indicates a likely deterioration in the functional effects in contrast to any significant functional improvement. Further, after Mr Fisher had had an opportunity to read the relevant provisions of the Act, he stated as part of his submission I think the history indicates that it is not likely to improve even though it is, under the terms of this, treated, diagnosed and stabilised (trans p80).
17. Based on the above evidence, I consider the condition to be fully stabilised as it is unlikely that there will be any significant improvement, with or without reasonable treatment, within the next two years. I find that at the date of his claim and within a period of 13 weeks after that date Mr Fisher’s condition of diabetes mellitus was stabilised.
18. Diabetes mellitus is dealt with in Table 19 of Schedule 1B which provides:
· a rating of NIL for a condition that is “adequately controlled”; and
· a rating of TWENTY for a condition that is “not satisfactorily controlled despite vigorous therapy as indicated by for example frequent hospital admissions, recurrent hypoglycaemic or hypotensive episodes and/or progressive end organ damage”.
19. Again, on the basis that his blood sugar levels were increasing and his treating doctor had recently prescribed an additional medication Mr Fisher contended that his diabetes mellitus was not adequately controlled and therefore his rating should be TWENTY. However, Mr Fisher presented no evidence, and there was no indication in any of the medical reports, that his condition required “vigorous therapy” as described in Table 19 to obtain a rating of TWENTY. Without such evidence I am unable to find that the Impairment Rating should be TWENTY. As there is no alternative in the Table, I find that the rating for diabetes mellitus in this case is NIL.
Peripheral Neuropathy
20. In regard to the complication of peripheral neuropathy, Ms Navarro submitted that this complication does not impact on Mr Fisher’s function or work capacity. This submission was based on the evidence of Ms Hall-Wiggins, a senior occupational therapist, who stated that although there was intact sensation it was not causing a functional problem or a lower limb incapacity. This evidence re-iterated the view in her report (Exhibit R1), in which she recommended an impairment rating of NIL for this condition. Mr Fisher’s evidence was that he gets pins and needles on his heels and insteps, that he cannot walk at certain times and that he has to sit and rest.
21. Table 4 of Schedule 1B relates to functional impairment of the lower limbs and provides:
· a rating of NIL for “Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m”; and
· a rating of TEN for “Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting”.
22. The description of the impairment for the rating of TEN more closely aligns with Mr Fisher’s evidence of the functional effect of this condition. This evidence was not questioned by the respondent. Therefore, I find that the impairment rating for peripheral neuropathy is TEN.
Retinopathy
23. In regard to his retinopathy Mr Fisher described the condition creating blood clots at the back of the eye. When questioned about the impact on function of the condition, he agreed with Ms Hall-Wiggins statement that “there is no current impact on function”.
24. Accepting this evidence from Mr Fisher, I find that there is no impairment rating for the complication of retinopathy.
Hypertension
25. The respondent concedes that Mr Fisher suffers from this condition and that it is permanent. There was no dispute that the condition is fully documented and diagnosed, and investigated, treated and stabilised.
26. Mr Fisher submitted no evidence of a functional impact resulting from this condition. I therefore accept the assessment by Ms Hall-Wiggins (Exhibit R1) that this condition has “minor symptoms that are easily tolerated and have no appreciable effect on ability to work”. I find that this condition has a NIL impairment rating.
Osteoarthritis
27. The respondent concedes that Mr Fisher suffers from this condition and that it is permanent. There was no dispute that the condition is fully documented and diagnosed, and investigated, treated and stabilised.
28. Mr Fisher’s treating doctor, Dr Galbraith, has made the following statements regarding this condition:
· In the report dated 23 December 2004 (attached to Exhibit R1) -Finally he has osteoarthritis and degenerative changes in the right shoulder and elbow. This causes pain and stiffness.
· In the report dated 19 October 2004 (T24) – … and finally generalised degenerative changes in the cervical spine, shoulders and right ankle resulting in reduced mobility.
29. In her report (Exhibit R1) Ms Hall-Wiggins stated:
Osteoarthritis – right elbow and shoulder – Condition determined as Permanent condition and rated because documentation provided by customer confirmed condition was fully diagnosed, treated and unlikely to show significant improvement in function within 2 years. Functional evidence that supported Impairment Rating assigned was: Right hand dominant, reported reduced capacity to perform activity requiring greater than 90 degree shoulder flexion. Customer was observed to have FULL ROM of the right and left upper limb. Customer reported full fine motor capacity. Reported that he had difficulty with washing his hair – tending to use left hand and some awkwardness with toileting (wiping self). Reportedly can use cutlery, hold a mug or glass and was observed to be able to write and hold a glass of water to drink. Customer stated some difficulty with pushing heavy doors open and carrying heavy weights. Can manage up to 5 kg weights.
30. Ms Hall-Wiggins summarised the effects of this condition as Uses dominant limb effectively/mild functional impact demonstrable loss of strength reported – no loss of mobility, coordination, dexterity, or sensation. Minimal functional impact and she assigned a rating of NIL.
31. Mr Fisher contested his ability to lift weights up to 5kg, stating such a weight was equivalent to carrying a house brick. In his cross examination of Ms Hall‑Wiggins he related the carrying of weights to his knee condition stating “Dr Brink said to a man who even had a knee operation that was successful, that he was not allowed to carry any weights”. Mr Fisher did, however, accept Ms Hall‑Wiggins’ description of lifting of weights like a kettle or two litres of milk which usually weigh around about that three to four…five kilos (trans p 58).
32. Table 3 of Schedule 1b relates to Upper Limb Function and provides for the following impairment point ratings:
NILCan use dominant limb effectively and/or
Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVEDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
33. Although Mr Fisher disagreed with Ms Hall-Wiggins assessment of his ability to carry weights of five kilograms, the disagreement was related to his knee condition. When taking issue with the five kilograms he said I don’t carry any weights. The doctor has told me not to carry weights. A fellow who, he said, he went up to the airport one day, and he did this total knee replacement job on him, and it was quite good and successful, and he caught him carrying bags up the stairs at the airport and he abused the hell out of him. He doesn’t do the repair to the job, to the knee, to make you able to carry weights … Besides that this leg is not well (trans p23). Mr Fisher took no issue with the remainder of Ms Hall-Wiggins assessment.
34. I find that Ms Hall-Wiggins description of Mr Fisher’s upper limb function aligns with the criteria for the rating of NIL. Accordingly, I find that the impairment resulting from the effects of Mr Fisher’s osteoarthritis is rated as NIL.
Hyperlipidaemia
35. This condition was not raised in the oral evidence or in the submissions by either party. Mr Fisher has not claimed a functional impairment arising from this condition nor was it specifically assessed by Ms Hall-Wiggins. I find that there is no impairment in this case arising from the condition of hyperlipidaemia.
Knee injury
36. On 7 September 2001 Mr Fisher had a total replacement of his right knee. This has not been totally successful and Mr Fisher has made an incomplete recovery, which the surgeon regards as permanent. The respondent’s submission is that the impairment rating of TEN points is consistent with the medical evidence stating Mr Fisher can walk 250 to 500 metres, although with pain.
37. For the respondent Ms Hall-Wiggins examined Mr Fisher and assessed his functional impairment as Moderate interference with walking, and climbing/squatting/sitting/kneeling. Customer admits to being able to mobilise up to 100 metres with aids and assigned a rating of TEN points (Exhibit R1). In her reasons supporting her recommended impairment rating Ms Hall-Wiggins reported Knee injury and total knee replacement, walk 5 min, difficulty with stairs, can’t kneel, can sit for 30 min, chronic pain … Can mobilise up to 100 metres without the use of aids or equipment. Mobilised independently from carpark, used escalator and walked to Centrelink office for assessment. Observed right knee to be swollen and warm to touch. …Reportedly can stand for a maximum of 5 minutes, independent in all transfers (car, chair, toilet and bed). Was observed to be independent transferring in and out of standard chair.
38. A similar assessment was made by Dr Tutton (T11) who stated:
On examination he has a swollen, stiff and painful right knee. When his lower limb functional impairment is rated on Table 4, he clearly falls into the category of “moderate interference with walking and –“ (10 points) rather than ‘major interference –“ (20 points). … To be considered “major” it must be of equivalent severity to being “unable to walk or stand but independently mobile using a self-propelled wheelchair.
39. In his evidence and in answer to questions from Ms Navarro, Mr Fisher made the following statements in regard to the functional effects of his knee:
· …the problem is that I can’t sit in a position fixed for too long because the knee sort of jams up if I don’t … get it straight again it just becomes aggravated so much it’s almost unbearable; (trans p20)
· … it is helpful to rest with it sitting up on a … stool; (trans p21)
· I’m unable to negotiate uneven ground or terrain or stairs. I go up stairs one at a time …; (trans p24)
· I can mobilise up to 100 metres; (trans p32)
40. Relevant extracts from the medical reports are:
· Mr Brink’s report dated 26 April 2005 (Exhibit A3) – Mr Fisher advises that his right knee replacement is increasingly painful and that he cannot tolerate standing or walking for more than very short times/distances. … I have no reason to doubt the veracity of his statements about this pain, given that he has some features of aseptic loosening of his knee arthroplasty on x‑ray and some persistent chronic swelling of the knee..
· Dr Galbraith's report dated 23 December 2004 (attachment to Exhibit R1) states–… he has had a total knee replacement with loosening of the prosthesis … This complication causes significant pain in his knee on walking, squatting, prolonged driving. He is unable to walk greater than 100m at a time..
41. The relevant extracts from Table 4 of Schedule 1B are:
TENDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts waling to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTYDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.”
42. In considering the evidence I note Ms Hall-Wiggins acceptance of Mr Fisher’s chronic pain and his walking limit of 100 metres with or without aids. Dr Tutton also noted Mr Fisher’s painful right knee. These observations support the report by Dr Galbraith that Mr Fisher suffers pain in his right knee and that he is unable to walk further than 100m at a time. I also take into account the statement by Mr Brink that he has no reason to doubt the veracity of Mr Fisher’s statements about his pain. On the basis of this evidence, common to both parties, I find that Mr Fisher’s pain in his right knee restricts his walking to 100 metres at a time and that he can walk further after resting.
43. The distinction between moderate and major interference with walking is not readily determined in this case. The criterion referring to the self-propelled wheelchair is not relevant in this case. With a finding on the “distance” criterion, however, it is not necessary to consider the other criteria. As listed the criteria do not require the restrictions on all listed functions to be met. The conditions are connected specifically by “or”. A finding on one is sufficient for a rating to be applied.
44. Therefore, I find that Mr Fisher meets the criterion for a rating of TWENTY points in Table 4.
Does Mr Fisher have a continuing inability to work?
45. Section 94(2) of the Act determines that a person has a continuing inability to work because of an impairment if:
· the impairment is of itself sufficient to prevent the person from doing any work within the next two years, and either
· the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next two years, or
· such training is unlikely, because of the impairment, to enable the person to do any work within the next two years.
46. 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:
· The availability to the person of educational or vocational or on-the-job training; or
· Unless the person has turned 55, the availability to the person of work in the person’s locally accessible labour market.
47. Section 94(5) defines work as 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.
Is the impairment of itself sufficient to prevent Mr Fisher from doing any work within the next two years?
48. Mr Fisher submitted that his impairments prevent him from doing work within the next two years for the following reasons:
· He would not pass the medical examinations and he would not get a WorkCover clearance,
· He is not capable of work, and
· His doctor would not give him a clearance to work.
Would a medical examination prevent Mr Fisher from finding suitable employment?
49. In regard to passing an employment medical examination and WorkCover clearance, Mr Fisher said:
I would not pass that medical … once the doctor who was assessing me had a look, would consider me to be not a suitable physical person, or a person of physical health to carry out duties in an employment position.
In her evidence Ms Hall‑Wiggins responded to this by stating I find that unusual because it is a sort of level of discrimination…stop a person from doing a job because of a disability, or an illness, or injury.…In most cases what you do sign for public service jobs is a statement to say, comparing to the job that you’re applying for you would be able to do it and it is within your physical capacity (trans p56). On this issue I accept the evidence of the occupational therapist, who should have knowledge in such matters.
Is Mr Fisher capable of work?
50. Mr Fisher contends that the affects of his impairment prevent him from doing any work. Medical reports submitted by Mr Fisher include the following statements:
· By Dr Galbraith (the treating doctor), in his report dated 23 December 2004, (attachment to Exhibit R1) – I do not believe he will return to work ….
· By Dr Galbraith, in his report dated 19 October 2004 (attachment to Exhibit R1) – …I do not think he will be able to work in the future….
· By Mr Brink (the treating orthopaedic surgeon) in his report dated 26 April 2005, (Exhibit A3) – Accordingly I do not believe he will be fit for even light work until he either improves spontaneously, which is unlikely, or until he has revision replacement of this knee arthroplasty.
· By Dr Richardson (the temporary treating doctor) in his report dated 7 July 2005 (Exhibit A4) –
Can the patient currently do his or her usual work … - No
If No, when is the patient likely to be able to … return to work/study – more than 2 years
51. The respondent submits that Mr Fisher’s impairments do not impact on his ability to work to the extent of 30 hours a week within the next two years. The respondent further submits that there are major social, non-medical factors that impact on Mr Fisher’s continuing ability to work. The report of Ms Hall-Wiggins, senior occupational therapist (Exhibit R1), includes the following statements:
Customer presented with a strong sick role – reporting a sedentary lifestyle and tending to describe activity and lifestyle in terms of disability rather than ability.
…
The customer reported a work history as a sales person and representative and described himself as the “Top 5 salesmen” in his company. He also reported an extensive history as an administrative worker/clerk for various government departments. He was educated to Year 12 level. He denies current or capacity to work in any capacity stating “I cannot work”.
Limited motivation to pursue work or personal goals.
Customer is resistant to a return to work in any capacity – as such may require some assistance with this transition from his well developed sick role to employment
…
Work capacity restricted due to reported mobility and upper limb symptoms. However would be able to manage sedentary level work … May be appropriate to commence work at 15 hours per week, grading up in hours to 25 hours per week in the first month and then to 30+ by the second month of a RTW.
…
Mr Fisher’s general practitioner indicated that Mr Fisher could not return to any work in any capacity. It is felt that Mr Fisher could not currently return to his pre-injury role as a travelling sales representative due to the mobility demands of this role. However, Mr Fisher has excellent transferable skills and a functional capacity that would enable him to work in a sedentary role on a full time basis if assisted to select appropriate work and duties.
52. Ms Hall-Wiggins also stated a number of attributes of Mr Fisher that would assist in finding suitable employment:
… Mr Fisher has an excellent work history. He’s very bright,…a lot of these clerical-type tasks would be familiar things that he’d done in the past …I felt that he had a transferable skills in, things that would not be too different to what he had been doing previously in his entire work history…his educational background …his incredibly successful work history…his communication skills, and his thinking processes. They’d be a very, very high level, so we’re talking about someone who would be able learn new roles (trans pp52‑53).
53. Ms Hall-Wiggins reported that with or without any interventions, Mr Fisher would be able to return to 30 hours a week or more within 6 months.
54. Essentially the determination of Mr Fisher’s ability to work is the consideration of conflicting opinions. One the one hand, the treating doctors and surgeon have made statements that Mr Fisher is not able to work. On the other hand is the assessment by an occupational therapist that Mr Fisher is capable of work, albeit a specific type of work. Ms Hall-Wiggins is an experienced occupational therapist who examined Mr Fisher with a detailed knowledge of the requirements of different employment opportunities and evaluated Mr Fisher’s attributes against the opportunities for sedentary work. In making her assessments Ms Hall-Wiggins had available the relevant reports of Dr Galbraith and Mr Brink.
55. The opinions of the treating doctors and surgeon appear to me to be related to an ability to undertake physical work in a general sense and do not necessarily relate to Mr Fisher’s ability to undertake sedentary work under the conditions detailed by Ms Hall-Wiggins. For the medical reports to be compelling in this case I consider that they would have to answer the question of whether or not Mr Fisher was able to undertake work of a sedentary nature. That question does not appear to have been put and therefore I consider that their opinions do not necessarily preclude Mr Fisher from undertaking suitable sedentary work. In this case I prefer the opinion of Ms Hall-Wiggins.
Specific contentions
56. In addition to the general contention of being unable to work, discussed above, Mr Fisher contends that his impairments prevent him from undertaking work in that they specifically affect his mobility, his ability to sit still for extended periods without movement and his ability to lift weights above waist height. He also contends that the pain from his knee affects his ability to concentrate.
Does Mr Fisher’s limited mobility prevent him from undertaking work?
57. In describing the impact on various employment positions of his limited mobility, Mr Fisher stated:
· he was unable to attend sales demonstrations and check supplier operations at their place;
· unable to do the running around required;
· unable to go into the field to work; and
· unable to physically detail the car so that it is suitable for the new client.
58. In her report (Exhibit R1) Ms Hall-Wiggins stated Work capacity restricted due to reported mobility and upper limb symptoms. However would be able to manage sedentary level work…. During cross‑examination Ms Hall-Wiggins made the following statements, not disputed by Mr Fisher, …you are still independent and so you are getting around on your own (trans p 59); and …you are still able to drive; you are still able to walk short distances (trans p 63).
59. In her oral evidence Ms Hall-Wiggins described sedentary work
…as any work that requires a person to carry less than 4.5 kilograms occasionally. So that means once or twice, or three times during the day, and mainly sit, with very occasional walking, and moving. So it generally allows for someone who can get to and from a work place, mainly sits, can have position adjustment and position tolerance changes regularly, and has minimal carrying capacity. (trans p44)
Ms Hall‑Wiggins recognised Mr Fisher’s painful knee and slow mobility and his need to stand and sit quite regularly but also stated: However, he was independent in all transfers, so he could get in and out of his car appropriately, in and out of, which he demonstrated on several occasions during the assessment… (trans p45)
60. While Mr Fisher’s limited mobility may affect his ability to fulfil all the requirements of some specific positions, I accept Ms Hall-Wiggins opinion that Mr Fisher would be able to manage sedentary level work provided that a suitable position is found. Ms Hall-Wiggins has listed a number of common employment categories that are predominantly sedentary in nature. From the broad range of clerical type employment categories I consider it reasonable that a position suited to Mr Fisher’s mobility restrictions would be available.
Does Mr Fisher’s inability to sit still for extended periods prevent him from undertaking work?
61. In describing his difficulty with sitting, Mr Fisher said:
…the problem is that I can’t sit in a position fixed for too long, because the knee sort of jams up…if I don’t get out and walk it, or stand it, or something and get it straight again it just becomes aggravated so much it’s almost unbearable (trans p.20).
He stated further …you don’t appreciate the pain that I’m in, right, as to how that affects my ability to function… my situation is very, very grim (trans p26). However, in describing his difficulty in sitting when related to driving his car Mr Fisher agreed that he could drive for 20 to 30 minutes after which he had to get out and stand or walk to get his knee going again. He said that he only had to stand momentary…Half a minute…just got to give it a click and move it out of the position that it’s stuck in (trans p20).
62. Ms Hall-Wiggins acknowledged Mr Fisher’s difficulty with sitting still for extended periods. However, she went on to say in regard to workplaces It is a very rare place where you can’t adjust your position (trans p54). I accept Ms Hall‑Wiggins assessment of the workplace situation and note the need for limited time and effort required of Mr Fisher to ease his knee after sitting for a period. I find that Mr Fisher’s difficulty with sitting is not sufficient to prevent his undertaking suitable employment on this ground alone.
Does Mr Fisher’s inability to lift weights above waist height prevent him from undertaking work?
63. In considering the impact of Mr Fisher’s osteoarthritis Ms Hall-Wiggins stated in her evidence:
…he does have some impact there, some barrier there, and that flexion greater than 90 degrees…would be difficult for Mr Fisher. I’ve also stated that fine motor tasks performed at waist height would not be affected, and that he is also using excellent compensatory mechanism…using his left hand instead for some tasks. So that – again we wouldn’t be looking at activities that allow him to sustain function over chest height. We’d be ideally wanting him to work at waist height, or do things at waist height. (trans p50)
64. This evidence of Ms Hall-Wiggins was not disputed by Mr Fisher. I consider Mr Fisher’s ability to compensate for his limitations in this area to be compatible with the description of the requirements of sedentary work. I find that Mr Fisher’s difficulty with lifting things above waist height is not sufficient to prevent his undertaking suitable employment on this ground.
Does Mr Fisher’s difficulty in concentrating prevent him from undertaking work?
65. In describing his inability to concentrate Mr Fisher stated I just couldn’t sit and concentrate because of the pain in the leg (trans p70).
66. There is no dispute that the pain in his knee affects Mr Fisher’s ability to sit in one position for too long. However, there was no evidence given of any affect on Mr Fisher’s ability to concentrate. The issue was not pursued by Ms Navarro, nor was there any assessment made by Ms Hall-Wiggins. I find that Mr Fisher’s stated difficulty in concentrating is not sufficient to prevent him from undertaking suitable work
Would his doctor give Mr Fisher a clearance to work?
67. In his evidence Mr Fisher stated that his doctor would not give him a clearance to work. In response to this issue Ms Hall-Wiggins stated Most doctors will also agree to …signing someone off for sedentary or light work that was not going to put any sort of injury at risk. I accept Ms Hall-Wiggins statement as being a reasonable expectation of a professional opinion. In any case this issue is not one of the impairment causing the inability to work, rather it is the absence of a doctor’s clearance that might impact on the ability to work and is therefore not considered further.
Finding on this issue
68. As a result of my considerations on this issue I accept the respondent’s submission and I find that the impairments of themselves are not sufficient to prevent Mr Fisher from doing sedentary work in the next two years.
Is the impairment of itself sufficient to prevent Mr Fisher from undertaking educational or vocational training or on-the-job training during the next two years?
69. As I have found that the impairment of itself is not sufficient to prevent Mr Fisher from doing any work within the next two years the provisions of sub‑paragraph s 94(2)(a) are not satisfied. This provision is connected to the sub‑paragraphs s 94(2)(b)(i) and (ii) with an and. These sub-paragraphs deal with the undertaking of training and the enabling effect of training. As (a) is not satisfied, the issues arising from (b) do not need consideration.
Is such training unlikely, because of the impairment, to enable the person to do any work within the next two years?
70. As in paragraph 75 Above, this question does not need to be considered as the provisions of s 94(2)(a) have not been met. Section 94(4) provides for additional consideration by the Secretary regarding training if a person has turned 55. As this provision relates only to s 94(2)(b)(ii) it is also not considered further in this matter.
71. Accordingly I find that Mr Fisher does not have a continuing inability to work in accordance with the provisions of s 94(2) and s 94(4) of the Act.
Polyuria
72. In his evidence Mr Fisher stated that he had an alteration to his health in that he now had to go to the toilet quite regularly and this had a functional impact on his capacity to work. This condition is noted in the Medication Summary of Dr Galbraith dated 26 July 2005 (Exhibit A5). The document states Presently he is also suffering from polyuria that is most distressing. As this condition is outside the period of this claim it is not considered in this decision. It would need to be the subject of a new claim.
FINDINGS
Does Mr Fisher have a physical impairment?
73. In this application for Disability Support Pension there is no dispute as to whether Mr Fisher has a physical impairment. It is agreed between the parties that that as at the date of claim, and within 13 weeks of that date, Mr Fisher suffered from the following permanent medical conditions:
· Diabetes mellitus and complications,
· Hypertension,
· Osteoarthritis,
· Hyperlipidaemia, and
· A knee injury.
Does the impairment amount to 20 points or more under the Impairment Tables?
74. Before determining whether diabetes mellitus could be assessed for an impairment rating it was first necessary to find that the condition was stabilised. I find that at the date of his claim and within a period of 13 weeks after that date Mr Fisher’s condition of diabetes mellitus was stabilised.
75.I find that the impairment ratings for the conditions are:
·Diabetes mellitus and complications – TEN points
· Hypertension – NIL points
· Osteoarthritis – NIL points
· Hyperlipidaemia – NIL points
· A knee injury – TWENTY points
Does Mr Fisher have a continuing inability to work?
76. I accept the submission of the respondent that Mr Fisher would be able to work in a sedentary role on a fulltime basis if assisted to select appropriate work and duties and that he would be able to return to 30 hours work a week or more within six months. I find that the impairments of themselves are not sufficient to prevent Mr Fisher from doing work any work within the next two years and therefore Mr Fisher does not have a continuing inability to work.
77. As a consequence Mr Fisher does not meet the requirements of s 94(1)(c)(i) of the Act and does not qualify for a disability support pension.
DECISION
78.The reviewable decision of the SSAT dated 2 February 2005 is affirmed.
I certify that the seventy-eight [78] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Elite Aloni
ClerkDate of Hearing: 3 August 2005
Date of Decision: 24 November 2005
Advocate for applicant: Mr D. Fisher (self represented)Advocate for the respondent: Ms K. Navarro, Centrelink
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