Garry Crosby and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 422
•13 February 2012
[2012] AATA 422
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/0111
Re
Garry Crosby
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 13 February 2012 Place Melbourne
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
Catchwords
Social Security – disability support pension – applicant achieved impairment rating of 20 points - whether applicant capable of working for 15 hours per week based on the disabilities which were accepted on date of claim or within 13 weeks of that claim – inability to consider non-medical barriers to employment
Legislation
Social Security Act 1991 sections 13(1), 94 and Schedule 1B
REASONS FOR DECISION
Regina Perton, Member
6 July 2012
The Tribunal provided oral reasons for its decision at a hearing of this application on 13 February 2012. The applicant requested written reasons for the decision.
Garry Crosby is a 61 year old man who suffers from a number of medical conditions. On 2 June 2010 he advised Centrelink that he wished to apply for a social security payment. Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs. On 8 June 2010 he lodged a claim for disability support pension (DSP) with supporting medical reports. Mr Crosby’s claim is deemed to have been lodged on 2 June 2010, the date he initially contacted Centrelink.
One of Mr Crosby’s treating specialists, Professor B McGrath, indicated that Mr Crosby had been diagnosed with congestive heart failure secondary to cardiomyopathy in January 2005. Mr Crosby was diagnosed with chronic renal failure in July 2009 but the symptoms were described as not specifically affecting Mr Crosby’s ability to function. Hypertension and atrial fibrillation were also relevant conditions but were described in Professor McGrath’s report as causing minimal impact on Mr Crosby’s ability to function.
On 21 July 2010 Centrelink determined that Mr Crosby was not eligible for DSP because his medical conditions did not result in a continuing inability to work for at least 15 hours per week.
Mr Crosby sought review by a Centrelink authorised review officer (ARO). Mr Crosby also provided additional medical evidence. On 2 September 2010 the ARO affirmed the original decision. Mr Crosby applied to the Social Security Appeals Tribunal (SSAT) for review of that decision. On 21 December 2010 the SSAT also affirmed the decision that Mr Crosby was not eligible for DSP.
On 12 January 2011 Mr Crosby lodged an application for review with this Tribunal.
The issue before the Tribunal is whether Mr Crosby met the criteria for DSP on 2 June 2010 or within 13 weeks of that date.
RELEVANT LEGISLATION
If a person lodges a claim within 14 days of contacting the Department (Centrelink) advising of his intention to seek a social security payment, s 13(1) of the Social Security Act 1991 (the Act) sets the date of lodgement as the date of that initial contact.
Section 94 of the Act sets out the requirements for the grant of DSP.
(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
…
Note 2: for Impairment Tables see section 23(1) and Schedule 1B.
(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 independently of a program of support within the next 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(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 a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support that:
(i) is designed to assist the person to prepare for, find or maintain work; and
(ii) is funded (wholly or partly) by the Commonwealth or is of a type that the Secretary considers is similar to a program of support that is funded (wholly or partly) by the Commonwealth; or
(b)is likely to need such a program of support provided occasionally; or
(c)is likely to need such a program of support that is not ongoing.
(5)In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)prevocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work‑related training (including on‑the‑job training).
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
The Impairment Tables, as they were at the time of Mr Crosby’s claim, were set out in Schedule 1B of the Act. The Introduction to Schedule 1B stated that:
1.These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. 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. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following an assessment is termed work related impairment and this term is used throughout this document.
2.These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. The assessor should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating. One of the skills which needs to be developed in order to assess impairment in this context is the ability to select the appropriate tables. The question which must be asked in each and every case is "which body systems have a functional impairment due to this condition?"
3.These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. This is measured by reference to an individual's efficiency in performing a set of defined functions in comparison with a fully able person. In using these tables 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.
4.A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5.The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
DID MR CROSBY MEET THE POINTS TEST FOR DSP?
On 27 May 2010 Professor McGrath completed a Centrelink medical form designed for doctors whose patients are seeking DSP. Professor McGrath had treated Mr Crosby since February 1999. He indicated that Mr Crosby suffered from congestive heart failure secondary to cardiomyopathy. The date of onset was in January 2000 and the date of diagnosis was 11 January 2005. He described the progress and treatment over the years. Professor McGrath stated that his patient had limited endurance as a result of his condition.
Professor McGrath stated that Mr Crosby also suffered chronic renal failure that was diagnosed in July 2009. The current symptom was nocturia with no specific treatment.When asked about conditions that were generally well managed and that cause minimal or limited impact on ability to function, Professor McGrath cited hypertension and atrial fibrillation, which were managed with medication.
On 22 July 2010 Professor McGrath prepared a report for Mr Crosby’s general practitioner. Professor McGrath stated that:
I saw this man for review on 21st July 2010. He has been asymptomatic, weight stable. His renal function had also stabilised…
Coronary angiography in June showed no significant coronary artery disease. Thus his underlying cardiac disease is idiopathic cardiomyopathy.
…
We discussed ongoing cardiac management and I noted Dr Stephen Duffy’s recommendation that he be considered for implantable defibrillator with possible beventricular pacemaker. At present he is stable on an appropriate combination therapy for heart failure. INR is stable on 3 mg Warfarin nocte.
…
A report from an unnamed specialist in the Glomerulonephritis Clinic at Southern Health dated 11 August 2010 and addressed to Mr Crosby’s general practitioner (the Tribunal was only provided with the first page of the report), stated the following:
…
It was my pleasure to see Mr Crosby. Generally he says that he has been feeling reasonably well since he was last seen in Clinic. He has recently been to see his Cardiologist, Dr Duffy at the Alfred Hospital and he says that he is due to see him again soon. He continues to see Professor Barry McGrath in the Outpatient Clinic and indeed had an appointment with him one week after he had seen me.
All in all he says that he has been feeling reasonably well and does not have any current problems.
I have spent some time today with him discussing the issues concerning his renal impairment. He has a degree of renal failure, which is not entirely clear. He has an elevated urinary albumin and he does have some positive serology, although it is all weak. I think it is likely that he would have glomerulonephritis, which could only be diagnosed accurately by renal biopsy, however at the moment his renal function is entirely stable and his elbow in albuminuria does not seem progressive. Also considering the fact that he is on Warfarin, it would mean that the biopsy would not be entirely straightforward.
Dr Jack Gutman, cardiologist and associate professor of medicine, provided a report dated 12 May 2011, in response to a request from Centrelink for his opinion of Mr Crosby’s condition during the relevant period. He provided a detailed medical history noting that Mr Crosby had an AICD (defibrillator) inserted on 30 November 2010. Dr Gutman assessed Mr Crosby’s impairment rating as being 20 points under the Impairment Tables due to the effect of his cardiomyopathy.
Given Dr Gutman’s assessment and the content of the other medical reports cited above, the Tribunal is satisfied that Mr Crosby had an impairment rating of 20 points during the 13 weeks after his date of claim. He therefore meets section 94(1)(a) and section 94(1)(b) of the Act.
DID MR CROSBY HAVE A CONTINUING INABILITY TO WORK?
On 16 June 2010 Health Services Australia Limited undertook a Job Capacity Assessment. The main assessor, Ms M Elbigawe, was assisted by a second assessor, Ms J Daniels. They determined that Mr Crosby's capacity for work was 15 to 22 hours per week. The Tribunal notes that the assessors did not award Mr Crosby any points under the Impairment Tables. The assessors stated that Mr Crosby was best suited to light duties work rather than manual labouring as he does not have the physical endurance. The assessors also addressed the barriers faced by Mr Crosby. These included his need for regular health care, his limited endurance, limited physical abilities, loss of confidence and his time out of the workforce. They suggested he may need workplace support as it is not likely that he will be able to maintain employment independently. The assessors suggested that Mr Crosby required specialist disability employment interventions.
In his report dated 12 May 2011, Dr Gutman pointed out that Mr Crosby had not worked since December 2005 when he took early retirement from his public service position at the Australian Taxation Office. When asked what the effect of his medical conditions was on Mr Crosby’s ability to function during the pension qualification period, Dr Gutman stated:
The effect on the ability to function/everyday activity is that he cannot mow the lawns but is able to do most house work such as making beds, carrying wet washing and washing dishes. He is able to walk in an average pace, not brisk, two laps of a football oval…
Dr Gutman's opinion was that Mr Crosby could work for fifteen hours per week in a sedentary capacity. He stated that Mr Crosby would require a program of support and it would be unlikely that he could work independently of a program of support.... However, Dr Gutman was of the opinion that Mr Crosby would have the ability to undertake training period.
In a further report dated 30 May 2011, Dr Gutman stated that Mr Crosby's impairment of itself was sufficient to prevent him from doing any work independently of the program of support. However, the impairment was not of itself sufficient to prevent Mr Crosby from undertaking training activity. He expressed the view that a training activity is likely to enable Mr Crosby to undertake work independently of a program of support.
In his oral evidence Mr Crosby described the barriers to his working. He had been out of the workforce for six years after taking early retirement. Because of his need for regular medical check-ups including hospital stays, he would need to find an employer who was very flexible. He has issues with his fingers from time to time as well due to low blood pressure. He also described additional recent health issues. Adding to his family's difficulties is the medical condition from which his wife now suffers. She is a teacher but no longer able to teach for the same number of days she could before taking ill.
Mr Crosby conceded that he might only be able to work for a few hours per week. He also queried whether someone would hire a person over 60 years of age with a lack of recent work activity and with his physical and energy limitations. In response, Mr T Noonan, the respondent’s advocate, pointed to s 94(3) of the Act, which states that the availability of work in a person’s locally accessible labour market is not to be taken into account. He also pointed to the broad definition of training activity in s 94(5).
The Tribunal takes into account not only Dr Gutman’s opinions but also the descriptions by Mr Crosby’s treating specialists at or around the time of his claim for DSP. The Tribunal is satisfied, based on the medical evidence and on the balance of probabilities, that Mr Crosby would have been capable of undertaking training activity during the two years after his date of claim.
The Tribunal finds that Mr Crosby did not meet the requirements for DSP set out in s 94(2) of the Act in relation to the claim (deemed to have been) lodged on 2 June 2010. As the Tribunal pointed out during the hearing, it may well be that with the additional medical issues Mr Crosby has faced after 2 June 2010, he may now qualify for DSP. The Tribunal can only take into account the situation for the 13 weeks that followed the lodgement of the claim under review.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
I certify that the preceding twenty-four (24)
paragraphs are a true copy of the reasons
for the decision herein of Ms Regina Perton.
D. Eva.Administrative Assistant
Dated 6 July 2012
Date of hearing 13 February 2012Applicant In person
Advocate for the Respondent Mr T Noonan -Centrelink Program
Litigation & Review Branch
0
0
0