Geiger and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2008] AATA 324
•21 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 324
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q20074671
GENERAL ADMINISTRATIVE DIVISION )
Re JOHANNES GEIGER Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date21 April 2008
Place Brisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...........................
MEMBER
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits and Allowances – disability support pension – relevant time-frame for qualification – impairment physical impairment – incapacity from physical conditions of spinal and knee degeneration – ratings of 10 under tables 4 and 5 of the Impairment Tables – combined rating of 20 points – no continuing inability to work because of an impairment – disability support pension not payable – decision affirmed.
Social Security Act 1991 ss 94(1), 94(2) - (5), schedule 1B
Social Security (Administration) Act 1999 schedule 2 cl 4
Secretary, Department of Social Security v Murphy (1998) 52 ALD 268
REASONS FOR DECISION
21 April 2008 RG Kenny, Member
Background
1. On 31 October 2006, Johannes Geiger made a claim for disability support pension, a form of income support payable in accordance with the terms of the Social Security Act 1991 (the Act). He nominated “arthritis in both knees”, “hernia problems both sides”, “lower back pain”, “concentration and memory loss”, “high blood pressure” and “cramps from time to time upper and lower leg muscles” as the basis of his claim. On 5 June 2007, a delegate of Centrelink rejected his claim. This decision was affirmed by an authorised review officer on 10 July 2007. On 30 August 2007, the decision was affirmed by the Social Security Appeals Tribunal. Mr Geiger now seeks review of that decision by the Administrative Appeals Tribunal.
Issues and Legislation
2. The requirements for payment of the disability support pension are set out in s 94(1) of the Act. The recipient must be aged at least 16 years and be an Australian resident, both of which criteria are not in dispute. Also, he must have a physical, intellectual or psychiatric impairment which attracts 20 points or more under the Impairment Tables in Schedule 1B of the Act. A condition, to be rateable, must be permanent in the sense that it is “a fully documented, diagnosed condition which has been investigated, treated and stabilised”[1]. Paragraph 4 of the Introduction to Schedule 1B provides the following guidance in relation to the issue of whether or not a condition is permanent. It reads:
“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.”
[1]Secretary, Department of Social Security v Murphy (1998) 52 ALD 268 at 271
3. In addition to the impairment rating of 20 points or more, the recipient must also have a continuing inability to work as provided for in s 94(2) to (5) of the Act which reads:
“(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 vocational rehabilitation 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 vocational rehabilitation 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.
(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 vocational rehabilitation or on-the-job training; 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) pre-vocational 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.
4. All of those requirements must be met and, in accordance with clause 4 of schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), this must be on the date of Mr Geiger’s claim ie 31 October 2006 or within 13 weeks of that date
Applicant’s Evidence
5. Mr Geiger gave the following evidence. He was born in Germany in 1944 and became an Australian citizen in 1985. He has an employment background in aircraft mechanics and building. He owned and operated an excavator until 2006 and then carried out handyman work until prevented from continuing by back pain. He experiences persistent pain in his back and in his knees which has been worsening since he made his claim in 2006. He prefers not to use prescription medication but takes paracetamol on a needs basis. For about 6 months he has taken magnesium tablets and a fish oil supplement to control his blood pressure. He treats his sensation of pain as an inbuilt alarm system and ceases any activity as and when it becomes too painful. He lives with his wife on a 6 acre property which he is preparing for sale and spends his time keeping it in a presentable state. Much of the heavy work such as mowing lawns is done by his wife but he spends much of his time taking care of other gardening needs. He does not remain in a seated or standing position for long periods and frequently varies between the two. He is able to drive his car for about 20 to 30 minutes before he needs to take a break. He is developing computer skills and uses these to write letters and send emails to family members. He recently commenced a physiotherapy program which was arranged through CRS Australia. He has attended one session which involved immersion and manipulation in a hydrobath. This procedure gave him relief at the time but left him feeling quite sore afterwards.
6. Mr Geiger agreed that he would be able to carry out certain work-oriented tasks such as might be undertaken by a store assistant including providing advice, moving from room to room to retrieve or shift stock and tending a counter. He considered that these involved daily routine activities of sitting and walking short distances and that he would be able to do this for three hours each day. However, he doubted that he would be given the opportunity to carry this out in a work environment.
7. Mr Geiger was critical of the report completed by occupational therapist Kimberley Lane as it was based on impressions of how he felt and what his limitation were when only he was in a position to describe these. He also contended that less regard should be given to her report than those of the medical practitioners who had examined him and concluded that he had an impairment of at least 20 points under the relevant tables.
Medical and Other Evidence
8. In evidence were reports from Mr Geiger’s treating medical practitioner, Dr James McCawley, and his locum, Dr Ian Truscott. On 30 October 2006, he described spinal degeneration with symptoms of low back pain, an absence of sciatica but pain when lifting things and when bending. He described a stooped position when walking. He also noted knee degeneration with bilateral pain, which is worse when walking and when standing or sitting in one position for a long time. Dr Truscott’s report, dated 21 December 2006 was in similar terms to that of Dr McCawley.
9. A report, dated 5 February 2007 with additional notations dated 23 July 2007, was also in evidence from Dr Michael Heugh. He was Mr Geiger’s subsequent treating doctor. His opinion was that Mr Geiger’s back condition was not suitable for surgery and was permanent, rather than temporary. He described loss of ¼ range of movement and chronic pain with low postural tolerance and suggested that it attracted 10 points under table 5.2. Dr Heugh also described Mr Geiger’s hypertension as being well controlled, asymptomatic and as presenting no functional impairment. For the hernia conditions, he wrote that there had been no surgical referral since initial repair 13 years earlier and he considered it to be a temporary condition.
10. A further report, dated 28 November 2007, was completed by Dr McCawley. He wrote that Mr Geiger’s back and knee conditions would persist for more than 2 years. He considered that a rating of 10 points was applicable for lumbar spine degeneration and wrote that he would not disagree with a rating of 10 for his bilateral knee degeneration.
11. Job capacity assessment reports were completed on 5 January 2007 and 17 May 2007 by Vili Nabuta, a registered psychologist. In the first report, he referred to spinal disorder, hypertension and hernia conditions as being temporary in nature and lower limb deficiencies which were permanent. In relation to the back, this was because of an absence of a specific diagnosis and the need for further investigation. For the lower limbs, he noted that there was demonstrable loss of strength, mobility, stability, balance and coordination such as to cause moderate interference with walking and sitting which attracted a rating of 10 under table 4. In assessing work capacity, he took account of incapacity from the lower limbs and was of the opinion that, with appropriate retraining and assistance, he would be capable of working in light semi-skilled work for 15 to 22 hours per week. In the later report, dated, Mr Nabuta referred to the report of Dr Heugh and accepted that the back condition was permanent. He described the loss of ¼ range of movement and an associated impairment rating of 5. He confirmed his earlier opinion on work capacity.
12. A job capacity assessment report was also completed by occupational therapist Kimberley Lane. This is referred to above in the summary of Mr Geiger’s evidence. Ms Lane described hypertension as fully diagnosed, treated and stabilised and permanent. The hernia was considered by her to be more akin to a muscle strain and, in any event, temporary. She reported that the back and knee conditions were not fully diagnosed, treated and stabilised and considered that Mr Geiger would achieve significant functional gains if he were to undertake reasonable intervention. Despite that, she also described them as “permanent” and explained this on the basis that the likely duration was more than 24 months. She referred to the earlier reports from Mr Geiger’s treating doctors and considered that, in them, there was an absence of reference about treatment prospects to inform their opinions that the back and knee conditions were fully diagnosed, treated and stabilised. She recommended a rating of nil for each condition. Ms Lane was of the opinion that Mr Geiger would be capable of working for 15 to 22 hours per week within 24 months with intervention from a rehabilitation service and that 3 hours work per day would be expected in light, less skilled work such as that of a console operator. She stated that her report was referrable to the period of 13 weeks from the date of Mr Geiger initial claim.
13. Lynda Cooze, registered psychologist, completed a job assessment report on 9 November 2006. Her opinion was that Mr Geiger was capable, even without interventional treatment, of working in light semi-skilled activity for 30 hours per week.
Submissions
14. Mr Black submitted that the relevant conditions for consideration were those relating to Mr Geiger’s back and knees but that these were not rateable because, in the relevant period, they were not fully diagnosed, treated and stabilised. Alternatively, he conceded that, if they were permanent, Mr Geiger suffered impairment from his conditions sufficient to achieve 20 points under the tables. Mr Geiger submitted that his back and knee conditions should be considered permanent and that reliance should be placed on the evidence of his treating doctors rather than that of those who were not medically trained.
Consideration
15. There is no evidence that either hypertension or hernia present measurable impairment to Mr Geiger. I accept the submission of Mr Black that the rateable conditions in this matter are Mr Geiger’s spinal and knee degeneration. There is some conflict in the evidence concerning the extent to which the former has been fully diagnosed, treated and stabilised but, on balance, I am satisfied that it should be regarded as permanent. In that regard, I rely on the later reports of Dr Heugh and of Dr McCawley. In assessing impairment, I am satisfied that the appropriate tables are:
Table 4Function of the lower limbs[2]
[2] Social Security Act 1991 Schedule 1B
Rating Criteria NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m 10 Demonstrable 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 walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.Table 5.2 Thoraco–lumbar-sacral spine[3]
[3] Social Security Act 1991 Schedule 1B
Rating Criteria NIL Normal or nearly normal range of movement. 5 Loss of one-quarter of normal range of movement. 10 Loss of one-quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes
orLoss of half of normal range of movement.
16. Mr Black conceded that the medical evidence supports a rating of 10 under those tables for knee degeneration and spinal degeneration, respectively. On the basis of the medical evidence of Dr Heugh and of Dr McCawley, I am satisfied that his concession is properly made and that, as a result, the overall impairment for Mr Geiger is 20. This meets the threshold provided for in s 94(1) of the Act.
17. I have noted the contention of Mr Geiger that the evidence of his doctors should be preferred to that of other health professionals who have provided reports in his case. However, the more informative material in this matter is found in the job assessment reports and I am satisfied that the authors thereof are eminently qualified to express the opinions provided. They have particular relevance to the extent to which Mr Geiger’s conditions impact upon his employment capacity.
18. Significantly, Ms Cooze’s report was completed within the relevant 13 week period. It took account of limitations imposed by both spinal and knee degeneration and she concluded that Mr Geiger was capable, even without interventional treatment, of working in light semi-skilled activity for 30 hours per week. Subsequent reports have been expressed in less beneficial terms. Of these reports, the most detailed and most recent is that provided by Ms Lane. In specific terms, she indicated that her assessment was directed to Mr Geiger’s circumstances in the 13 weeks following his claim. Her opinion is not materially different from those expressed by Mr Nabuta in his reports, the second of which included reference to both back and knee conditions. In his evidence, Mr Geiger agreed that he would be capable of undertaking the kind of work described in those report for 15 hours per week.
19. Based on the job assessment reports and Mr Geiger’s evidence, I am satisfied that, in the 13 week period from the date of his claim for disability support pension, Mr Geiger did not have a continuing inability to work because of an impairment as provided for in s 94(2) of the Act.
20. As noted above, all of the requirements of section 94 must be met for a person to qualify for the disability support pension. That is not the situation with Mr Geiger in the 13 week period from 31 October 2006 and I am satisfied that he did not qualify for the disability support pension in the relevant time-frame.
Decision
21. The Tribunal affirms the decision under review.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: .....................................................................................
E. Young, Research AssociateDate/s of Hearing 11 April 2008
Date of Decision 21 April 2008
Applicant Mr Geiger, himself
Respondent Mr M Black, Departmental Advocate
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