Gibbons and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 773

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/327

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RAYMOND LESLIE GIBBONS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date10 September 2001
PlaceSydney

Decision      The decision under review is affirmed.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
Qualification for disability support pension – impairment to the dominant right hand – crush fracture right wrist – continuing inability to work - whether able to undertake work within the next two years – impairment rating – whether able to undertake educational or vocational training within the next two years – Schedule 1B
Social Security Act 1991, ss 94(1)(a), (b), (c)(i), (d), (e)(i), (2)(a), (b), (3), (5), Schedule 1B, TABLE 3.

REASONS FOR DECISION

10 September 2001 M J Sassella, Senior Member

History of the application/chronology

On 17 August 2000 Raymond Leslie Gibbons ("the Applicant") lodged an application for disability support pension ("DSP") with Centrelink (T3). He listed his disability, illness or injury as being a "bad right hand."
On 24 August 2000 the Applicant lodged a treating doctor's report ("TDR") of the same date by Dr Gordon White in support of his application for DSP (T4). Dr White diagnosed "crush fracture of hamate bone right wrist" and further stated that the Applicant had suffered "significant damage to the tendons of the 2nd, 3rd and 4th fingers dorsal aspect." Dr White noted that the Applicant had undergone an ultrasound of the right wrist on 8 August 2000 and a CT scan on 13 July 2000. The Applicant had had a plaster splint fitted onto the wrist on 13 July 2000 and this was rewired on 1 August 2000. Dr White stated that the Applicant would be unable to return to his employment as a labourer within two years but would be able to return to non-labouring employment with six months. He would be able to work more than 20 and 30 hours per week within six months. Dr White felt that the Applicant would benefit from vocational training or rehabilitation.
On 28 September 2000 Dr Kamenyitzky of Health Services Australia completed a medical assessment report in respect of the Applicant (T5). He noted the significant features and history of the condition:

The injury was suffered at work in 1985 (not 11 July 2000 as stated in the TDR).
The injury was treated conservatively with a splint.
No surgery was required.
The Applicant has ongoing pain that is fully relieved by Mersyndol.
The Applicant is able to drive a car with power steering.
He can do housework, mainly with the left hand.
The wrist is very stiff.
A deformity of the proximal end of the metacarpal.
A marked reduction in grip strength and dexterity.

Dr Kamenyitzky found that the Applicant was unfit for two handed or repetitive work which involved the dominant right hand. The condition was further considered to be permanent, with an impairment rating of 20 points under table 3 (of the Impairment Tables in Schedule 1B of the Social Security Act 1991 ["the Act"]). He also recommended further educational, vocational or on-the-job training and stated that the Applicant was "fit for light, full-time work and vocational training and he may benefit from vocational rehabilitation."
On 3 October 2000 Centrelink wrote to the Applicant informing him that, because he had been found fit for full-time work and vocational training for at least 30 hours per week, DSP could not be paid to him (T8).
On 10 October 2000 a departmental minute noted that the Applicant had attended an appointment to discuss the rejection of his application for DSP (T9). The Applicant's objections were as follows:

The Commonwealth Medical Officer ("CMO") agreed with his own doctor that he had very little use of his right hand.
The CMO's report was contradictory in that very limited use of the right hand was acknowledged but it was stated that the Applicant was capable of a "one handed job."
He had been to the Commonwealth Rehabilitation Service ("CRS") but his doctor had told them that he is not fit to commence a program of rehabilitation.
If he was forced to work it might damage the hand further which could lead to a total loss of use.

On 12 October 2000 Dr White wrote to Centrelink informing it that he had had no contact with the CMO who conducted the examination of the Applicant on 28 September 2000 and that he had not stated at any time that the Applicant was fit for 30 hours or more of work per week (T10). The Tribunal reiterates, however, that Dr White, in T4 had certified that the Applicant would be fit to work at least 30 hours "within 6 months".
On 28 October 2000 another TDR was completed by Dr White (T11). On this occasion he noted two conditions – "crush fracture right wrist" and "nerve damage right forearm, wrist and hand." In relation to the latter of these conditions he noted "increasing signs of neurological deficit and degree of muscle wasting right forearm." The crush fracture condition was described as long term (likely to persist for at least 2 years), fluctuating and constant. The nerve damage was also described as long term, as well as deteriorating and constant. It was Dr White's opinion that the Applicant would not be able to return to any kind of work, of at least eight hours duration, for at least two years.
On 24 October 2000 Health Services Australia provided another medical assessment report on the Applicant (T12). It noted the following salient points about the Applicant's lifestyle:

He does not drive, but can use public transport.
He can shop for himself.
He lives alone and cooks, cleans and washes for himself.

In relation to the condition itself the report noted that the right shoulder joint was normal but there was occasional radiating pain in the elbow. The Applicant was also suffering "wrist stiffness with reduced finger movement" and a weak right hand grip. It was further reported that that he avoided using his right upper limb. A 20 point impairment rating was found using impairment table 3. The report also examined the Applicant's ability to return to work and found that:

He would not be able to return to his usual occupation for more than two years.
He was currently (at the time of examination) able to return to other full-time work.
He was currently able to study for at least 15 hours per week in his present condition.
He was currently able to work more than 20 hours per week.
He was currently able to work part-time for at least eight hours per week.

In conclusion the report summarised the points made above and found that "the client has [impairment rating] of 20 points. He is medically fit for selected light work that does not need the use of both hands."
On 17 November 2000 Centrelink contacted Dr White to discuss the Applicant's medical condition (T13). Dr White stated that he would be able to undertake work that did not require the use of the right hand and that he would benefit from referral to a disability provider for employment assistance. Dr White further stated that the Applicant had developed carpal tunnel syndrome in the right hand and that this condition should be treated surgically. However this would not prevent the Applicant from performing work which takes into the account the recommended restrictions. The Tribunal pauses to note that this opinion is different from that given by Dr White in T11 less than one month previously.
T13 contains a Centrelink file note dated 17 November 2000, "Have offerred [sic] Mr Gibbons referral for employment (HFS) but he has declined assistance".
In a letter dated 17 November 2000 Centrelink wrote to the Applicant (T14) informing him that, based on all the medical evidence provided, the decision of 3 October 2000 (T8) was affirmed. The Applicant was not eligible to receive DSP.
A file note of 22 November (T16) noted that the Applicant had contacted Centrelink and complained about the application process and his eligibility for a DSP. He claimed that the Government was "cutting back on DSP claims…" and that it was impossible to receive such a pension unless it was actually offered to the client.
On 7 December 2000 a Centrelink file note recorded a conversation with the Applicant (T17). The departmental decision was explained to him, specifically that the reports from both Dr White and Health Services Australia stated that he was fit for full- and part-time work. The file note also recorded the differing opinions from Dr White:

His report of 24 August 2000 (T4) stated that the Applicant could return to work within 6-12 months.
His report of 26 October 2000 (T11) stated that the Applicant could not work for at least two years.
In a conversation of 17 November 2000 (T13) Dr White stated that the Applicant could perform work that did not involve the use of the right hand.

Also on 7 December 2000 a Centrelink case report by an authorised review officer recorded a summary of the medical evidence and noted the differing opinions of Dr White (T18). It further noted the Health Services Australia report that stated that the Applicant could perform full-time light work for at least 30 hour per week and work for more than 20 hours per week. The Applicant was not fit for heavy or two-handed work or work involving the use of his right hand.
Further to this case report, the authorised review officer affirmed the decision not to grant DSP to the Applicant on 7 December 2000 (T19).
On 15 December 2000 the Applicant lodged an application for review of this decision with the Social Security Appeals Tribunal ("SSAT") (T20).
On 26 June 2001 Dr White provided another medical report on the Applicant (Exhibit A1). He restated the Applicant's medical history but in this report included the fact that the Applicant did not suffer from carpal syndrome and that this was confirmed by an ultrasound of 8 August 2000. Dr White also noted that the decrease in the Applicant's power/co-ordination in the right wrist and hand is an "immense problem." The Applicant has difficulties using a pen and Dr White provided an example of his signature. Dr White considered it unlikely that a suitable position could be found for the Applicant and that "without orthopaedic or neurosurgical intervention, his condition will certainly not improve by possibly worsen over the ensuring [sic] years." The Applicant has undergone such treatment but Dr White noted that it had not improved the Applicant's condition.
Dr White did say, however, "As to whether Mr Gibbons is able to perform any work within the 2 years, one would have to say that there could always be a particular one that would fit his 'niche' but it would have to exclude any right hand work like as a telephone operator in case in point, he would have to hold the telephone in his left hand and then is unable to write with his right hand. Alternatively, hold the phone in his right hand but he cannot write with his left hand."
The decision under review
On 20 December 2000 (T2) the SSAT affirmed the decision of the authorised review officer of 7 December 2000 (T19). The SSAT noted the medical conditions and the work history of the Applicant. It learned that the Applicant could not lift heavy objects but can lift, as an example, a litre of milk. He feels pain in his hand after about 30 seconds of holding such an item. The Applicant writes with his right hand. An example of the Applicant's difficulty with such a task is that it took the Applicant half an hour to complete the DSP claim form. The SSAT further noted that he lives alone and manages his own cleaning and cooking. In essence the SSAT did not dispute the facts surrounding the diagnosis of the condition nor the restrictions that the Applicant suffered.
The SSAT found that the Applicant satisfied s 94(1)(a) of the Act in that he had a physical impairment. However the main issue was whether the Applicant had a continuing inability to work and therefore satisfied s 94(1)(c). The SSAT found that the restrictions on the Applicant's abilities were not sufficient to prevent him from doing any work in the next two years pursuant to s 94(2)(a) nor were they sufficient to prevent him from undertaking educational or vocational training within the next years pursuant to s 94(2)(b)(i) of the Act. The SSAT was therefore satisfied that the Applicant did not meet the requirements of s 94(1)(c) and did not qualify for a DSP.
Background
The Applicant was born on 1 April 1957 (T12). He worked, as a factory cleaner, until 1999 (T5). He left this employment because he couldn't perform the tasks quickly enough due to his disability. Previous to this he worked as a storeman/cleaner for Pub Squash for six years until 1985. He left this position because of the right hand injury.
The Applicant left school at the age of 16. He has a class 1A driver's licence, that is a normal driver's licence. He is single, has never been married, has no children and lives alone (T5).
Legislation
The relevant legislation in this matter consists of the following provisions from the Act: section 94(1)(a), (b), (c)(i), (d), (e)(i), (2)(a), (b), (3), (5), Schedule 1B, TABLE 3.
94 Qualification for disability support pension
(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;
          …
          (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
          …
          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:
          …
          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 (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.
Person not qualified in certain circumstances
…"
"…
Schedule 1B—Tables for the assessment of work-related impairment for disability support pension
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
NIL Can 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.
FIVE Demonstrable 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.
TEN Demonstrable 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.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non-dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
…"

Hearing and appearances

The Tribunal convened a hearing in Sydney on 6 September 2001. The Applicant represented himself. Ms H Schuster of Centrelink represented the Respondent.
The Tribunal received the following documentary material into evidence:

Exhibit TD1 – Section 37 Statement and associated documents provided by Centrelink, received on 18 April 2001.

Exhibit A1 – Report by Dr G White, general practitioner, 26 June 2001.

Exhibit R1 – Respondent's statement of facts and contentions, 3 September 2001.

Findings on material questions of fact with reference to the evidence and other materials in support of those findings

In order to qualify for payment of DSP a claimant must satisfy a number of eligibility criteria. In the Applicant's case these are largely uncontentious. The straightforward criteria, and the Applicant's status in relation to them, are as follows:

The Applicant must have a physical, intellectual or psychiatric impairment (s 94(1)(a) of the Act). The Applicant has such an impairment. Dr White (T4, T11, Exhibit A1), Dr Kamenyitzky (T5) and a Health Services Australia doctor whose name cannot be read (T12) all agree that the Applicant has a fracture in a bone in his right wrist.

The Applicant's impairment must attract a rating of at least 20 points using the Impairment Tables in Schedule 1B of the Act (s 94(1)(b) of the Act). Mr Gibbons's impairment has attracted a 20 points rating (T5, T12).

The Applicant must be aged 16 or above (s 94(1)(d) of the Act). The Applicant is aged 44 years and was well over 16 when he claimed DSP (T3).

The Applicant must have been an Australian resident when he first satisfied the requirements for a continuing inability to work (s 94(1)(c) of the Act). Bearing in mind that the issue before the Tribunal is whether the Applicant can satisfy the requirements for a continuing inability to work, if he can there should be no doubt that he satisfies this particular criterion (T3).

The Tribunal therefore finds that the Applicant has satisfied all of the above requirements.
The sole outstanding issue in this case is whether the Applicant fulfils the requirement in s 94(1)(c)(i) whereby he must have a continuing inability to work. The resolution of this issue requires consideration of several questions posed in s 94 of the Act. These are:
Is the Applicant's impairment of itself sufficient to prevent him from doing any work within the next 2 years (s 94(2)(a) of the Act)?

Does the Applicant's impairment of itself prevent him from undertaking educational or vocational training, or on-the-job training during the next 2 years (s 94(2)(b)(i) of the Act)?

If the answer to question 2 is no, would such training be unlikely (because of the impairment) to enable the Applicant to do any work within the next 2 years (s 94(2)(b)(ii) of the Act)?

The Tribunal will now consider these questions.
Question 1 - Is the Applicant's impairment of itself sufficient to prevent him from doing any work within the next 2 years (s 94(2)(a) of the Act)?
The medical evidence surveyed above is overwhelmingly to the effect that the Applicant could do work for 30 or more hours a week, albeit with restrictions. The restrictions would involve avoiding any work involving more than light use of the right hand, the left hand being fully useable. The only medical evidence suggesting that the Applicant could not do work in the relevant sense in the next two years is in the report by Dr White in T11 in which Dr White provides an opinion at odds with those he has also provided in T4, T13 and Exhibit A1.

The Applicant's own evidence before the Tribunal was to the following effect.
He has incredible difficulty writing anything. He is right hand dominant and it is his right wrist that is impaired. He indicated swelling of the right wrist and hand, the changing of colour of the skin on his right wrist and hand, and a numbness that can occur over the same area for periods of up to 20 minutes followed by pins and needles as the numbness passes. He has no control over these symptoms. As he spoke in the Tribunal his wrist was "throbbing a bit". He takes the painkiller, Mersyndol, at the rate of about one a day, although he tries to keep the number down to a half a dose a day sometimes so as not to form an addiction. He finds that he can also derive relief by bathing his right hand and wrist in cold water.
The Health Services Australia comments at folio 88 of T12 were put to the Applicant. It had been written that Mr Gibbons could work as a cleaner/labourer until 1998. He could still in 2000 use public transport, go shopping, cook, clean, wash dishes, etc. He was said to be medically fit for selected light work not requiring the use of both hands. The Applicant explained that he did the listed activities with his left hand. He could do these actions but they took longer to do.
The other Health Service Australia comments in T5 at folio 61 were then put to the Applicant. Dr Kamenyitzky had written, "He can drive a car with power steering and also do any light work that is one handed such as a gate keeper or console operator." The Applicant protested that he could not do these jobs with one hand. He would eventually be forced into using the right hand. In any case, said the Applicant, he would do the work too slowly for the requirements of an employer. The Applicant subsequently asked what is a console operator. In the Tribunal's view the Applicant's response to these suggestions is, in the context of the applicable legislation, unreasonable. Any employer taking on an employee with the Applicant's impairment would make allowances. From its own observations, the Tribunal is confident that an operator of a console in a service station could do that work with one hand if necessary.
The Applicant was unimpressed with the SSAT's assessment in T2 (folios 7-8) that "he has some use of his right hand and can use it to lift light objects and there was no evidence of any impairment in the use of his left hand. He manages to drive a car, to attend to his own housework and self care and has been able to work since receiving his injuries." The Applicant said that he cannot lift even light objects, that it is too painful. He told the Tribunal that he cannot lift anything with his right hand. The Tribunal asked him about an SSAT observation that he could lift a carton of milk with his right hand even if not carry it around. If he carries things around he tends to use his right forearm to rest them on. He confirmed that this is so, but was also keen to suggest that he just cannot lift and carry with the right hand.
He told the Tribunal that he looks for work. He goes from door to door asking different enterprises if they have anything on offer. He said he visits all of them when he goes out doing this. He tells them that he can try to do labouring work but that he cannot use his right hand and will be very slow and that he cannot, in effect, write. He considers that he cannot fill out application forms for jobs because of his writing disability. He agreed that he told these things to potential employers when canvassing for work. He told the Tribunal that it took him an entire weekend and extra painkillers to complete the Tribunal's application for review for this matter, a task involving filling in several quite small boxes. He said that he tried to mop a floor for one potential employer and "what a mistake that was" About 15 to 20 seconds with his right hand was all he could manage.
The Tribunal asked Mr Gibbons about his driving. He explained that he has no car. His driver's licence expired in June 2001. He last drove quite a few years ago, he said. He last owned a car 10 to 15 years ago. The Tribunal asked him why he could not drive taxis. The Applicant believes that there is a written entry test and that that would be a problem. However, he said he would not mind being a taxi driver. He looked into it once years ago. He queried whether he would require a special licence to drive a taxi.
The Tribunal asked Mr Gibbons to respond to Dr White's comments to a Centrelink employee on 17 November 2000 (T13) where he said, "Mr Gibbons is able to perform suitable work that does not require the use of his right hand. … Mr Gibbons would benefit from referral to a disability provider for re-employment assistance." The same Centrelink employee noted on the same page on the same date, "Have offerred [sic] Mr Gibbons referral for employment (HFS) but he has declined assistance." All that Mr Gibbons could say as regards potential work was "Show me a one-handed job". He objected that he had not refused employment assistance. Rather he said that he had been denied such assistance "at Macarthur". The meaning here was unclear. Mr Gibbons had brought no documents with him to the hearing. He seemed to be trying to suggest that the file note was incorrect in indicating an unwillingness to undergo vocational assessment and assistance and that he had tried for that but been rejected. The Centrelink representative could find no record of such an occurrence and the Applicant could provide nothing either.
The Tribunal asked Mr Gibbons just why he could not perform console operator work. That was when he asked what such work was. After that was explained to him the Tribunal asked him whether he had ever canvassed a service station for such work. He initially returned to his earlier answers about working slowly, being unable to write, and being unable to work in a one-handed fashion before admitting that he had never sought such work.
The Tribunal notes the statutory injunctions about inability to work in s 94 of the Act. The work must be work paid at award level or better (s 94(5)). It must be work for 30 or more hours a week (s 94(5)). It must be work that exists in Australia, even if not in the claimant's locally accessible labour market (s 94(5)). In the Tribunal's view, the experts, Dr White and the Health Services Australia doctors, were referring to work that fits that description when they opined that the Applicant could do certain work. That work was full-time, or nearly full-time, work available in Australia and within the Applicant's physical competence.
The Tribunal finds that the Applicant is fit to do such work as gate keeper, console operator and, possibly, perhaps after some training and attending to licence requirements, taxi driving. In addition, the Tribunal has difficulty understanding why such jobs as parking inspector, courier, toll-booth collector and deliverer of pizzas would be beyond the Applicant, despite his disability.
Further, the Tribunal considers that many of the Applicant's perceptions as to the barriers that exist to his working, ie that he may be slow and that he has writing difficulties, could be dealt with in the course of a vocational program to equip the Applicant to re-enter employment. The Applicant is aged only 44. If awarded DSP he could be on that payment (or age pension in due course) and outside the work force for 40 or more years. It is difficult to conceive of that being in the public interest, or in Mr Gibbons's own interest, when he could be earning income from work if he were to engage seriously in a training endeavour.
The answer to question 1 is therefore that the Applicant's impairment of itself is not sufficient to prevent him from doing any work within the next 2 years. This means that he has not qualified for grant of a DSP and that it is unnecessary to address questions 2 and 3.
Conclusion
The Applicant is not qualified for payment of a DSP.
Decision
The decision under review is affirmed.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  6 September 2001
Date of Decision  10 September 2001
Self-represented Applicant
Representative for the Respondent        Ms H Schuster

[2001] AATA 773

10 September 2001

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Disability Support Pension

Continuing Inability to Work

Impairment Rating