Forrest and Department of Family and Community Services

[2001] AATA 141

DECISION AND REASONS FOR DECISION [2001] AATA 141

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/706

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      MARK FORREST  
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr J D Campbell, Member 

Date26 February 2001

PlaceSydney

Decision      The Tribunal determines that the decision under review be affirmed.          

….…………………………
  Dr J D Campbell
  Member
CATCHWORDS
Social Security - disability support pension - cancellation - assessment of impairments - inability to work

Social Security Act 1991, sections 94, 100, Schedule 1B Impairment Tables

REASONS FOR DECISION

Dr J D Campbell, Member

1. Mr Mark Forrest ("the Applicant") in this matter seeks a review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 5 April 2000 which affirmed the decision of a Centrelink delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 9 September 1998 that the Applicant did not qualify for disability support pension ("DSP").  This latter decision had been reviewed and affirmed by an authorised review officer in a decision dated 18 May 1999.

2. A hearing was held before the Tribunal at Gosford on 30 January 2001, at which the self represented Applicant presented oral evidence.  The Respondent was represented by Ms Smith, an advocate from the Advocacy and Administrative Law section of Centrelink.

3. The following material was placed into evidence before the Tribunal:
   Documents prepared pursuant to the Administrative Appeals Tribunal Act 1975 T1-20 pp1-97
   Medical report of Dr Bangash, dated 30 October 2000 Exhibit A1     
   Medical report of Dr Hawkes, dated 29 January 2001  Exhibit A2     
   Nuclear medicine report of Dr Hawkes, dated 21 August 2000          Exhibit A3     
   Medical certificate of Dr Hawkes, dated 31 August 2000        Exhibit A4     
   Schedule 1B Impairment Tables as annotated by Dr Bangash, dated 29 January 2001    Exhibit A5           
   Medical report of Dr Bangash, dated 28 August 2000  Exhibit A6     
   Medical report of Dr Bangash, dated 18 September 2000      Exhibit A7     
   Respondent's statement of facts and contentions, dated 19 January 2001  Exhibit R1     

Issues

1. The relevant issues in this matter are:

   1. whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the impairment tables in schedule 1B; and
   2. If so, whether the impairment is of itself sufficient to prevent the Applicant

   ·     from doing any work within the next 2 years; and

   ·     from undertaking educational or vocation training or on-the-job training during the next 2 years; or

   ·     whether such training is unlikely because of the impairment to enable the Applicant to do any work within the next 2 years.

Legislation

1. The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular ss94(1), (2), (3), (4), (5), (6), 100(3) and the Tables for the Assessment of Work Related Impairment for Disability Support Pension ("Schedule 1B Impairment Tables").
   Background

2. On 9 April 1996 the Applicant was considered to qualify for and was granted disability support pension ("DSP").  On 20 August 1998 the Applicant was reviewed by a medical adviser employed by Health Services Australia, who found that the Applicant had a combined impairment rating of 10 points for the disabilities of septic arthritis of both ankles, previous fracture of the cervical spine and alcohol abuse.  The Applicant was found to be fit for full-time work of a sedentary nature and vocational retraining/rehabilitation was recommended to be of assistance (T11).

3. As a consequence the Respondent determined that the Applicant was not qualified for DSP and on 9 October 1998 the Applicant was informed that his DSP was cancelled, with the last pension payment being made on 15 October 1998 (T13).  An internal review was conducted at the request of the Applicant, and the original decision was affirmed in a decision dated 5 January 1999 (T14), and again on 14 April 1999 (T16).  The matter was further reviewed and affirmed by an authorised review officer on 18 May 1999 (T21) and by the SSAT on 5 April 2000.
   The Applicant's Evidence

4. The Applicant told the Tribunal that he was born on 15 April 1958.  He stated that he left school at the age of 15 having completed his school certificate and commenced his 18 months training as a pastry cook.  Further employment followed as a roof tiler for 12 months, a stint in Western Australia doing odd jobs for a few months, followed by a period in gaol in 1978.  The Applicant stated that in 1979 he did odd jobs in the Huskisson area, followed by employment for five years as a meat carter at Homebush.  There was another trip to Western Australian for a short period in 1980.  In 1986 the Applicant had a car accident in which he fractured his neck.  Since that time he has not worked, but has undertaken two courses (bar and hospitality) in an attempt at rehabilitation and found neither to be satisfactory.

5. The Applicant stated that he married in 1997, but that currently he was separated from his wife, a situation that arose from his episodic alcohol abuse.  He is currently living in rented accommodation with another man, who works as a carpet layer, and this man's ten year old son.  The Applicant stated that he has a variable rising time because of his alcohol dependence and that he spends the day doing household chores (washing up, washing, laundry), moping around the house, watching TV, going to the beach if a ride is available, or to the hotel.  The Applicant admits to being bored with his lot in life; that he had a heroin problem at the age of 20 and some difficulties with physeptone; that he has had some convictions for alcohol related driving offences, that he spent further time in gaol to pay off his fines and that he has given his car to a person in need.  Apart from going to the hotel, the Applicant stated that he rarely socialises with the last occasion being in January 2001.  The Applicant expressed to the Tribunal an interest in computers and computer technology, and further a desire in being given an opportunity to undertake basic education in such.

6. The Applicant gave evidence of his clinical condition in relation to his neck.  He stated that he was involved in an accident in 1986, when a passenger in a car.  He went home after the accident but two days later was admitted to Liverpool Hospital because of pain in his neck and shoulder and altered sensation in half the body.  The Applicant was placed in a neck brace for a week.  He also noticed pain in his lower back.  He experienced particular difficulties between 1986 and 1994, but over the last few years he has not experienced much pain in his neck and enjoys a good range of movement.  All in all his neck today is not much of a problem.

7. In relation to his use of alcohol, the Applicant described himself as a binge drinker, approximately once every fortnight, when he might drink 20-50 schooners over three days.  He further stated that he only smokes when he drinks.  The Applicant further described his memory as variable, with some difficulty sometimes with his short term memory.  He stated that he has no difficulty with concentration.

8. The Applicant gave further evidence of his ankle condition.  He stated that one evening, when aged 12, he woke up with a fever and pain in his left ankle.  The ankle was drained in theatre and reviewed regularly (3-4 times) up to 1978.  The Applicant stated that his ankle still swells up and causes pain from time to time.  In later years the Applicant's right ankle started swelling up and became painful intermittently.

9. The Applicant gave further evidence in relation to his hepatitis C, which was diagnosed about one year ago.  This condition causes him to be sleepy during the day, but the Applicant stated that generally he does not sleep well at night.

10. In response to questions in cross examination, the Applicant stated that he believed that his ankle conditions had deteriorated over time, although his difficulties with walking have remained unchanged over the last five to ten years.  Further he stated that he experiences a variable range of movement, which is dependent upon the degree of swelling present.  When the swelling and/or ankle pain is present, he prefers to sit with his left leg elevated.

11. In response to questions from the Tribunal, the Applicant stated that he could walk 200-300 yards, then rest and repeat the distance.  He stated that he was able to stand up for long periods, that kneeling down was not a problem and that he could squat only with some difficulty.  The Applicant stated that he had difficulty climbing stairs, while able to descend stairs with minimal difficulty.
    Medical Evidence
    Dr Bangash

12. In a treating doctor's report dated 21 May 1998, Dr Bangash described the Applicant's clinical features in the following terms:

    (a)      disc degeneration C4/5 and fracture C6, which causes the Applicant recurrent pain in the cervical spine and left shoulder; the condition was considered to be stable with its onset in 1986; and
    (b)      painful right and left ankles, where both ankles swell up and become painful intermittently; the condition is said to be long term and deteriorating, having commenced in 1987 (T10, P54).

13. In his report Dr Bangash considered that the Applicant was unfit for any form of work for 30 or more hours per week, but would be able to perform light duty work for at least eight hours per week (T10, P56).
    Dr Fogg

14. On 20 August 1998 Dr Fogg, a medical adviser from Health Services Australia, made the following whole person impairment of the Applicant:

    "This 40 year old man last worked in 1986 as a gyprocker, leaving when he had a motor vehicle accident with a neck fracture.
    He has a long-term intermittent problem as the result of septic arthritis of the ankles many years ago.  At most time he has normal lower limb function.  However, 3-4 times a year he experiences "flare-ups" requiring elevation and compression bandages.  He does not take analgesics, nor has he needed regular medical review.
    Despite the history of previous neck fracture, a full ROM was demonstrated today.
    The customer drinks alcohol, usually no more than a weekly basis (although he usually has excess drinks on these occasions).  However, his consumption of alcohol has never interfered with his attendance at work in the past and would be considered "social" in nature with no real effect on work capacity.
    The impairment rating is 10.
    Currently he would appear to be medically fit for light, full-time work, particularly of a sedentary nature.  Eg light bench-based process work.  He would benefit from vocational retaining [sic] /rehabilitation."
    (T11, P71)

1. In a series of medical reports dated 28 January 1999 (T15), 28 August 2000 (Exhibit A6), 18 September 2000 (Exhibit A7) and 30 October 2000 (Exhibit A1), Dr Bangash confirms the Applicant's conditions and clinical features as:

   (a)      fracture of the sixth cervical vertebra with disc degeneration at C4/5, associated with pain; and
   (b)      arthritis in both ankles associated with intermittent pain and swelling.

1. In an annotation dated 29 January 2001 in the Schedule 1B Impairment Tables, Dr Bangash concluded that the Applicant had a 20 point impairment rating under Table 4 for his bilateral ankle arthritis (Exhibit A5).

2. In a nuclear medicine report dated 21 August 2000, Dr Buchanan, a consultant radiologist stated:

   "…
   Findings
   Dynamic images are unremarkable.
   Delayed images show minor nonuniformity in the cervical spine at C3/4 level consistent with minor degenerative change (slightly more prominent on the right side).  The remainder of uptake is normal for age.  Minor focal abnormality in the left occiput consistent with benign pathology such as a small inter-sutural bone or other process.
   Nonuniformity is quite marked in the ankle joints consistent with prematurely advanced degenerative change (more marked on the right).  These changes are however bilateral.  There is also minor degeneration in the toes.
   Comment
   There is markedly advanced degenerative change in the ankle joints which is consistent with previous septic arthritis with delayed effects of prematurely advancing osteoarthrosis (secondary osteoarthrosis).  There is also minor subtalar arthrosis in the right ankle.  The remainder of uptake is normal for age apart from mildly advanced degeneration in the toes.  No inflammatory arthropathy identified at this stage."
   (Exhibit A3)

1. In the two medical reports dated 31 August 2000 (Exhibit A4) and 29 January 2001 (Exhibit A2), Dr Hawkes, a general practitioner, stated that the Applicant has the following conditions:

   (a)      chronic alcoholism;
   (b)      hepatitis C;
   (c)       osteoarthritis of both ankles; and
   (d)      cervical neck pain.

Dr Hawkes also considered that the Applicant was unfit to do any work for more than two years.
Submissions: The Applicant

1. The Applicant, relying upon the medical opinions of his two treating medical practitioners, Drs Bangash and Hawkes, contends that he has particular impairments which on assessment are greater than 20 points.  Further, and again relying upon the opinions of his two treating doctors, the Applicant contends that he has a continuing inability to work.  As such it is his contention that he qualifies for DSP.
   The Respondent

2. The Respondent, relying in part upon the evidence of the Applicant and the opinion of the medical adviser Dr Fogg, contends that the combined impairment rating of the Applicant's disabilities is less than 20 points, and further that the Applicant does not have a continuing inability to work.  Accordingly the Respondent submits that the Applicant does not qualify for DSP.
   Consideration and Findings

3. In preliminary comment, the Tribunal is mindful that ss100(3) of the Act prescribes that the Tribunal must focus its attention on the medical issues and evidence that led to the decision to cancel the Applicants DSP and for a period of three months thereafter. Material and evidence outside this period (the operative period) can be used in such circumstances that allows the Tribunal to enjoy a better understanding of the various medical conditions, their clinical features and their effect on the Applicant's ability to work during the operative period.

4. In further comment the Tribunal finds that Applicant presented his evidence with frankness, enjoyed a considered understanding of his circumstances and while expressing a frustration with his inability to attain appropriate rehabilitative training, did not attempt to embellish the various effects of his various disabilities.

5. The Tribunal, having considered the evidence of the Applicant and the various medical reports as nominated earlier in this decision, finds that the Applicant has the following medical conditions and associated clinical features:

   (a)      cervical spine degeneration with minimal pain, full range of movement and a condition that is not really a problem for the Applicant;
   (b)      alcohol abuse which is episodic and arises from boredom; a condition that has had domestic consequences; occurs every fortnight for approximately three days; has resulted in a number of drink driving offences; there was a previous episode of drug dependence;
   (c)       hepatitis C which is recently diagnosed, with some complaints of malaise and tiredness;
   (d)      osteoarthritis of both ankles which is long standing; arose from septic arthritis in the left ankle at age 12; considerable operative intervention when aged 12-20; current intermittent pain and swelling both ankles; able to walk 200-300 yards, rest and continue for some distance; able to kneel, stand and climb down stairs; can squat and climb stairs with difficulty; used medication (panadeine forte) intermittently; enjoys swimming.

1. In considering the many issues in this matter, it is necessary for the Tribunal to place the evidence in the context of the relevant legislation, namely section 94(1) in part, and (2) , (3), (4), and (5) of the Social Security Act 1991. The relevant subsections in this matter are:

   "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

   …
   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 do 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:
   (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.

   …"

1. The Tribunal, in considering the facts found earlier against the legislative framework, finds that the Applicant satisfies ss94(1)(a) of the Act in that he has both physical and psychiatric (alcohol abuse) impairments.

2. In assessing each of these impairments under Schedule 1B Impairment Tables the Tribunal, again relying upon the evidence of the Applicant and having considered the opinions of the various doctors, makes the following findings for the following reasons:
   (a) arthritis both ankles      10 points under Table 4 – Function of the Lower Limbs.  The Tribunal has noted the Applicant's symptomology and has concluded that his described symptoms are consistent with a moderate interference with walking, climbing and squatting.  Further the Tribunal notes that the symptomology from his ankles is intermittent and the rating given reflects the chronic nature of the condition;      
   (b) cervical spine disc degeneration       0 points under Table 5.1 – Cervical Spine – such a rating reflects the Applicant's description of his symptomology and Dr Fogg's finding of nearly normal range of movement of cervical spine, which in turn was demonstrated by the Applicant to the Tribunal;       
   (c) alcohol abuse     5 points under Table 7, in that there is evidence of a long term history of drug and alcohol abuse which is episodic in nature and has domestic and social consequences; on current habits it would cause temporary or intermittent absences from work;         
   (d) hepatitis C          nil points under Table 11.1, as the symptomology described by the Applicant is minimal and there has been no attempt at treatment, which would include alcohol abstinence or reduction.     

1. As a consequence of the Tribunal's finding in relation to the various ratings of each of the Applicant's impairments the Tribunal, in noting that the combined impairment rating is 15 points, finds that the Applicant fails to satisfy ss94(1)(b) of the Act.

2. In considering the Applicant's ability to work, the Tribunal notes the divergent opinions of the two treating practitioners and the opinion given by Dr Fogg.  In considering these various opinions together with the evidence of the Applicant, the Tribunals finds that the Applicant does not have a continuing inability to work, in that the nature of the disabilities and the impairment rating arising from them has been assessed and detailed by Dr Fogg in such a manner as to clearly demonstrate that the Applicant has a capacity to work in a range of light skilled, semi skilled and less skilled work categories.  The Tribunal also notes and concedes that the Applicant would be assisted in his return to work if he was to receive a vocational rehabilitation program, recommended by Dr Fogg.  The Tribunal would also comment that while the two treating doctors have detailed the diagnostic features of the Applicant's conditions, their assessment of the Applicant's capacity to work is variable, with part-time work being recommended by Dr Bangash, and neither doctor defining any specifics as to how they have reached their conclusions.

3. As a consequence the Tribunal concludes that the Applicant does not satisfy ss94(1)(c) of the Act in that he does not satisfy ss94(2)(a) because his various impairments do not prevent him from undertaking work within the next two years. Further the Tribunal finds that the Applicant does not satisfy either ss94(2)(b)(i) in that the impairments do not prevent him from undertaking vocational, educational or on-the-job-training during the next two years. He also fails to satisfy ss94(b)(ii) in that the impairments, despite the Applicant having undertaken education, vocational or on-the-job training, will not of themselves prevent the Applicant from doing any work within the next two years.

4. The Tribunal, in summary, finds that the Applicant does not qualify for disability support pension in that he has failed to satisfy ss94(1)(b) and (c) of the Act at the appropriate time of application.
   Determination

5. The Tribunal determines that the decision under review be affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr J D Campbell, Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  30 January 2001
Date of Decision  26 February 2001
Representative for the Applicant        Mr M Forrest, self represented.
Representative for the Respondent   Ms A Smith, Centrelink Advocate