Grech and Secretary, Department of Family and Community Services - [2002] AATA 1043

DECISION AND REASONS FOR DECISION [2002] AATA 1043

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/712

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

DECISION

Tribunal Mr S Webb, Member

Date28 October 2002
PlaceWollongong

Decision The Tribunal decides to affirm the decision under review.

[SGD] Mr S Webb
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether Applicant qualifies for disability support pension – whether Applicant's medical conditions attract an impairment rating of 20 points or more on the date of claim or within 13 weeks thereafter – continuing inability to work

LEGISLATION
Social Security Act 1991 (Cth) – section 94; Schedule 1B
Social Security (Administration) Act 1999 (Cth) – Schedule 2 clause 4

AUTHORITIES
Re Street and Secretary, Department of Family and Community Services [2000] AATA 105
Re Ryzak and Secretary, Department of Family and Community Services [2000] AATA 631
Re Secretary, Department of Social Security and Davis [1998] AATA 31
Secretary, Department of Social Security v Goudge (1989) 17 ALD 415

REASONS FOR DECISION

28 October 2002 Mr S Webb, Member

This is an application by Mr John Grech ("the Applicant") for review of a decision made by the Social Security Appeals Tribunal ("the SSAT") on 24 October 2000 to affirm a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 26 May 2000 which rejected the Applicant's claims for disability support pension (T2). The original decision was reviewed and affirmed by an authorised review officer ("ARO") on 28 July 2000 (T24).
At the hearing, the Applicant represented himself and Mr G Lozynsky, of Centrelink's Advocacy and Administrative Law Team, represented the Respondent. An interpreter assisted the Tribunal in the Maltese language.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") (T1-T32, pp1-122). These and the following additional documents were taken into evidence:

Exhibit          Description Date
A1      Report from Dr S Deshpande, with two-paragraph supplement        20 May 2002
R1      Report from Dr B Doherty, including one page attachment     19 October 2001
R2      Report from Dr M Noorzad 12 October 2001
R3      Report from Dr M Noorzad 6 October 2001
R4      Report from Dr S Deshpande      1 March 2002

After the hearing, the following documents were submitted by the parties and were taken into evidence:

Exhibit          Description Date
A2      Report by Dr G Fisher, General Practitioner      16 September2002
A3      Report by Dr R Mills, Specialist Occupational Physician        5 April 2002
R5      Respondent's submissions in response to additional medical evidence      24 September 2002

The Applicant gave sworn oral evidence at the hearing.

PRELIMINARY ISSUES

At the hearing a preliminary issue arose in relation to the two claims for disability support pension lodged by the Applicant on 18 February 2000 and 26 May 2000. The Respondent contended that both claims were subject of the review process and, having been considered by the SSAT, were before the Tribunal.
However, there was no evidence of this. Neither the application to the SSAT nor the SSAT decision make reference to the Applicant's second claim for disability support pension, referring only to the original decision made on 26 May 2000, the same day on which the Applicant lodged his second claim. This being the case, pursuant to section 1283 of the Social Security Act 1991 ("the Act") the Tribunal does not have jurisdiction to make a decision regarding the claim for disability support pension lodged by the Applicant on 26 May 2000.

BACKGROUND

The following information is provided by way of background and is not disputed.
The Applicant was employed as a labourer and steam-cleaner by State Rail Authority for many years. He injured his ear in an accident at work on 21 December 1988 and received a compensation payment. He injured his left heel (calcaneum) in a fall at work on 20 August 1990. As result of the injury the Applicant was not able to wear safety boots. He was made redundant in 1994 and has not worked since.
The Applicant's treating doctor declared him unfit for work for extended periods following the retrenchment. The Applicant lodged claims for disability support pension in 1997 and 1998. Centrelink's decisions to reject these claims were affirmed by an ARO on 18 June 1997 and 11 January 1999.
On 9 September 1999 the Applicant fell from a ladder fracturing his right heel and ankle (calcaneum and sub-talar joints). He lodged a claim for disability support pension on 18 February 2000 and a second claim on 26 May 2000. The claim lodged on 18 February 2000 was based on incapacities arising from injuries to both feet, lower back and leg pain and hearing canal blockage. Centrelink decided to reject the claim on 26 May 2000. This decision was affirmed by an ARO on 28 July 2000. The Applicant's subsequent appeal to the SSAT was also unsuccessful, leading to the current appeal.

EVIDENCE

the applicant

The Applicant informed the Tribunal that he had worked on the railways for many years and finished on being made redundant in 1994. At the time many railway workers were laid off, having been offered retraining for work involving computers, stores, operating cranes or driving trucks. The Applicant "gave up" because he could not read or write, and accepted redundancy.
Thereafter he looked for employment by asking for work with local businesses and responding to job advertisements identified by members of his family in newspapers. He had persisted in looking for work, without success, until "about three years ago", when he desisted because of his incapacities.
The Applicant stated that his incapacities prevent him from doing labouring work. He lives quietly with his wife, relying on his son to do maintenance jobs around the house. He is able to dress himself, but has to sit down to put on his trousers otherwise he loses balance. The Applicant does no gardening and has no outdoor hobbies. He gets up in the morning, goes for a walk, takes the children to school in his car and likes to watch movies. He drives his wife to the shops and back, but is not able to assist with, or carry, the shopping. He has no difficulty driving his car, which is an automatic, and has no need to use public transport. He does not wash or service his car himself. He and his wife attend a club once a week, where she plays Housie and he talks with his mates.
The Applicant told the Tribunal that the injury to his left foot had caused pain, and prevented him from wearing safety boots. He had physiotherapy treatment for one year after the accident. This injury does not cause pain now, but there is a spur on the bone. He is only able to wear soft shoes as a consequence.
The Applicant informed the Tribunal that the injury to his right foot is most significant. This injury occurred while he had been attempting to remove an antenna that had fallen on his roof in a wind. He had fallen from the ladder, breaking his right heel and ankle. He had a plaster cast for ten days and was informed that he required an operation to insert a plate and a screw. The injury caused persistent pain, swelling and bruising. The Applicant is still waiting for the proposed operation and has been told by Wollongong Hospital that he is on a waiting list and the operation could occur at any time until 2005.
The injury to the Applicant's right ankle causes constant pain. Walking and standing aggravate the pain, which diminishes when sitting. The bruising and swelling have gone and the Applicant claimed he can only walk for five to ten minutes before having to sit down. The Applicant claimed that the muscles in his right leg had wasted by two inches and that his right leg is shorter than his left as a result of his injury. The injury has improved, although he still has symptoms and pains - where previously he could only walk with the aid of a walking stick, he now can walk without such aid.
The Applicant stated that the pain in his lower back commenced after he injured his right foot. His hips "bend" to accommodate his right leg being shorter than his left, which causes pain. An X-ray was taken of his back, which revealed some arthritis. There has been no change in his back condition over the past two years.
The Applicant told the Tribunal that he has had problems with his ears, especially his right ear since an accident about 15 years ago at work. He gets periodic infections in his ears that have to be treated with drops. He had a hearing test before leaving work in 1994 and was paid an amount of $1,500 for hearing loss. Each time he gets an infection he sees his doctor. The Applicant could not remember when he had seen his doctor about this ailment nor how many times this ailment had occurred in 2000. He attributed his memory lapse to a memory problem that started when he fell from the ladder and injured his right foot. In this accident he also hit his head and has difficulty remembering things as a result. The Applicant had not told his doctors about this injury because he was scared of what they might think.
The Applicant stated that he wanted to work and thought that he would be able to work full time if he could work sitting down. He thought it would be difficult for him to get a job because of his injuries and because he does not speak English well and cannot read or write. In cross examination the Applicant agreed that he would be able to do work such as postal work if he could sit and was shown what to do.
In this regard the Applicant agreed that he could undertake some education or training to assist his chances of employment, improving his English and his reading and writing abilities for example.
medical evidence
The medical reports in evidence may be relevantly summarised in chronological order, as follows:

9 October 1998 (T4)           Dr Nickolich, Radiologist, reported that vertebral alignment appears normal, there are mild spondylitic changes in the area of L2-5, slight narrowing within the normal range at L5/S1 and no other abnormalities in the lumbar spine.
26 June 1999 (T4)             Dr Chapman, Radiologist, reported, in respect of the right heel, that there is no thickening of the plantar soft tissues and calcaneal bone density is normal, noting "a small plantar calcaneal spur" and "a small schlerotic bone island in the anterior calcaneum".
27 September 1999 (T4)     Dr Blumgart, Radiologist, reported, in respect of the right heel, "[t]he grossly comminuted fracture of the calcaneum is shown which extends into the sub-talar joints".
5 November 1999 (T4)       Dr Ho, Radiologist, reported, in respect of the right calcaneum, "[f]ractures are noted at the calcaneus which appears a little flattened. Bony union is not complete."
6 January 2000 (T4)           Dr Blumgart reported, in respect of the right ankle and foot, that the bones show "severe disuse osteoporosis. The deformity of the talus is noted with loss of the normal Bohler's angle. The appearance is that of a healing fracture of the talus. Bony union appears to be progressing with some residual lucency seen in this region."
17 March 2000 (T8)            Dr Fisher, General Practitioner, completed a Treating Doctor's Report ("TDR") describing a fracture to the right heel and indicating treatment with "Rest. Physiotherapy. Exercise." Dr Fisher stated that it was likely the Applicant would be fit to work 20 hours per week or more within twelve to twenty four months, noting that this would "depend on the type of work".
31 March 2000 (T10)          Dr Fisher completed a TDR describing a comminuted fracture to the right calcaneum with talar dislocation, indicating treatment with "Immobilisation initially then slow exercise" and noting "Slow recovery. Some arthritis developing." Dr Fisher also described recurrent otitis externa indicating treatment with "Intermittent antibiotics…".   Dr Fisher stated that the Applicant would be likely to be able to return to full time work immediately, noting that he is "unable to walk much".
13 April 2000 (T12)             Dr Young, Medical Adviser to Health Services Australia, assessed the Applicant and took a history of the injuries to both feet, noting pain in both feet "walks slowly > 500 metres" and "sits/stands > 30 min". Dr Young recorded the right foot injury to be "healing" and the left foot injury resulting in "minimal residual functional loss". Dr Young recorded otitis externa and middle ear infection, noting "recurrent episodes, treated with antibiotics, no significant functional loss", and back pain, noting "[I]ntermittent on bending; associated with R heel damage/ impaired weight bearing… xrays: no significant abnormality, spondylosis age related, mild L2-4". Dr Young recorded the three conditions as temporary and reported that the Applicant was permanently unfit for heavy work, but would be fit for light duties within three months. The injury to his right foot is healing and the resultant impairment is improving.
26 June 2000 (T19)            Dr Deshpande, Orthopaedic Surgeon, described the fracture to the Applicant's right heel bone and noted that "[t]his has healed…". Dr Deshpande noted that the Applicant is unable to do his usual work because of "a significant disability for hard labouring work".
13 July 2000 (T23)              Dr Fisher reported that the Applicant "has not fully recovered and will probably never fully recover" from the injury to his right foot. Dr Fisher did "not think he would be fit for most jobs for the rest of this year."
18 October 2000 (T26)       Dr Fisher reported "[h]is right ankle remains swollen and painful. There is some reactive osteoporosis in the ankle joint and I am hopeful this will improve. Mr Grech is severely disabled and realistically is unlikely to do any work. This situation is unlikely to improve in the next six months."
3 November 2000 (T28)     Dr Fisher completed a TDR reporting that the Applicant is likely to be able to return to full time work immediately, but he is unable to be on his feet for more than twenty minutes at a time.
22 May 2001 (T31)              Dr Deshpande completed a TDR reporting that the Applicant is unlikely to be able to return to any sort of work within two years.
6 October 2001 (R3)           Dr Noorzad, General Practitioner, completed a TDR and reported that the Applicant is unlikely to be able to return to any sort of work within two years.
12 October 2001 (R2)        Dr Noorzad completed a TDR and stated that the Applicant's condition was long term (likely to persist for at least two years) and constant but fluctuating. He suggested an "arthrodesis if his symptoms continue".
19 October 2001 (R1)        Dr Doherty, Medical Adviser to Health Services Australia, assessed the Applicant and gave an impairment rating of 10 points (Table 4) for the osteoporosis in both feet and nil points for the otitis externa. Dr Doherty reported "Mr Grech is medically fit for full-time work and is likely to remain so for the next two years. He is unfit for manual work at this time. His ankle complaint is unlikely to change significantly in the next two years without further trauma. He is fit for light, unskilled work at a bench or similar."
1 March 2002 (R4)              Dr Deshpande completed a TDR reporting that the Applicant would be unlikely to be able to return to work of any sort within two years.
5 April 2002 (A3)                 Dr R Mills, Occupational Physician, reported "All current medical conditions suffered by Mr Grech" as:
1.        Right ankle subaloid osteoarthritis.
2.        Non-specific low back pain (present only on bending).
3.        Left foot pain (which has not been present for some years prior to this consultation)."
Dr Mills considered the conditions stable and unchanged from 13 April 2000, assigning an impairment rating of 20 impairment points under Table 4 of Schedule 1B of the Act for the right ankle condition, and nil impairment points for the other conditions. Dr Mills stated that the Applicant "does have a residual work capacity, which would enable him to work for at least 30 hours per week", with the following restrictions: "no squatting or climbing. No prolonged standing or walking and to avoid walking on uneven ground. I would consider him unfit to drive a manual motor vehicle or operate machinery/equipment requiring significant ankle movement and/or plantar flexion with the right foot." Dr Mills did not consider the Applicant's impairment would prevent him from being able to undertake educational or vocational training, opining that, like Dr Doherty in his report dated 18 October 2001, he considered the Applicant "fit for light, unskilled work at a bench or similar".

20 May 2002 (A1) Dr Deshpande reported "He may require further surgical treatment to his foot in the form of an arthrodesis of the sub-talar joint. This will, however give him stiffness in the sub-talar joint and make it difficult for him to walk on uneven grounds. At the present time his disability is 20% in his right lower limb.
The impairment however does not prevent him from doing any work within the next 2 years. This could be possible after appropriate surgical treatment for his present problem. The suitable work should be, however, related to walking on even surfaces and avoiding climbing stairs and ladders and carrying heavy loads of greater than 20 kgs.
The impairment does not prevent him from undertaking educational or vocational on the job training."

16 September 2002 (A2) Dr Fisher provided a history of twelve consultations over an eleven-year period, with none in the qualification period, regarding the Applicant's "right otitis media" and "right otitis externa". Dr Fisher reported the Applicant describing an incident, in which a gate blew and hit his right ear at work, that resulted in a "haematoma on the external ear. There was mild otitis externa. The drum was intact." Dr Fisher reported that in March 1993 the Applicant had been referred to Dr S Tamhane, an ear nose and throat specialist, who had reported that the Applicant had "bilateral high tone sensorineural hearing loss which is symmetrical".

ISSUES AND CONTENTIONS

The issue before the Tribunal is whether the Applicant qualifies for disability support pension under section 94 of the Act.
In order to so qualify, the Tribunal must find the Applicant's medical conditions attract a rating of 20 impairment points or more on the date on which the claim was lodged or within thirteen weeks thereafter. If this is found to be the case, the Tribunal must then be satisfied that the Applicant has a continuing inability to work.
When considering this question, the Tribunal is not to have regard to the availability to the person of vocational or educational training, or on-the-job training. Nor, in cases where the person is under 55 years of age, is the Tribunal permitted to have regard to the availability of work in the person's local labour market.
The Applicant contends that he is qualified for disability support pension and that his medical conditions prevent him from working. The Applicant contends that his movement is restricted and he suffers pain from the injuries to his feet. He is unable to lift heavy weights and requires periodical medical treatment for his hearing problems.
The Applicant contends that he would like to resume work but is not able to do so because of his impairments. He would be willing to undergo educational or vocational training to improve his English, reading and writing if this would assist him to get work, but this is unlikely to occur within the next two years.

The Respondent contends that the original decision to reject the Applicant's claim for disability support pension was correct. The Applicant's medical conditions did not attract an impairment rating of 20 impairment points at the time of the original claim on 18 February 2000 nor within thirteen weeks thereafter. Dr Mills assigned an impairment rating of 20 impairment points on 5 April 2002. However, the Respondent contended, the Tribunal should rely on the reports of Dr Young (T12, folio 63) and Dr Fisher (T23, folio 86) as the conditions were temporary in nature.
The Respondent submits that the Applicant does not have a continuing inability to work because of his medical conditions, and relies on Dr Mills' opinion that the Applicant has the capacity to perform work at 30 hours per week. In this regard the Respondent also relies of Dr Doherty's report that the Applicant is fit for light unskilled work (Exhibit R1). The Respondent contends that the Applicant's medical conditions do not prevent him from participating in educational or vocational training during the next two years.

LEGISLATION

Qualification for disability support pension is determined pursuant to section 94 of the Act, as follows:
"Section 94 Qualification for disability support pension
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
(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
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)      is not an Australian resident; and
(B)      is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see section 23(1) and Schedule 1B.
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.
Note: For work see subsection (5).
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.
Person not qualified in certain circumstances
94.(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.
Note: A person who is receiving a disability support pension may be automatically transferred to the age pension if the person becomes qualified for the age pension (subsection 48(3)."

CONSIDERATION OF THE ISSUES AND FINDINGS

The start day for a claim for disability support pension is to be worked out in accordance with clause 4 of Schedule 2 to the Social Security (Administration) Act 1999, which relevantly provides:
"Section 4 Start day – early claim
4.(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…"
The Tribunal is mindful of authorities regarding the period during which qualification for disability support pension may be determined, on and after lodgement of a claim: Re Street andSecretary, Department of Family and Community Services [2000] AATA 105; Re Ryzak and Secretary, Department of Family and Community Services [2000] AATA 631; Re Secretary, Department of Family and Community Services and Davis [1998] AATA 31; Secretary, Department of Social Security Goudge (1989) 17 ALD 415. The Applicant's qualification for disability support pension may only be determined during the period comprising thirteen weeks commencing immediately after the day on which the claim was lodged ("the qualification period"), and not thereafter. The Applicant lodged a claim for disability support pension on 18 February 2000. In this case the qualification period will commence on 19 February 2000 and will end on 19 May 2000.
The parties agree and the Tribunal finds that the Applicant's claimed conditions, relating to comminuted fracture of the right heel, left foot pain, lower back and leg pain and hearing loss, constitute a physical impairment, thereby satisfying the first qualifying requirement under section 94(1)(a) of the Act.
impairment rating
The second qualifying requirement set out in section 94(1)(b) of the Act requires an impairment rating of 20 points or more under the Impairment Tables set out in Schedule 1B of the Act. Paragraphs 4, 5 and 6 of the Introduction to the "Tables for Assessment of Impairment of Disability Support Pension" state:
"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.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible ie, available locally at a reasonable cost;
·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects, which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
indicate why this treatment is reasonable; and
note the reasons why the person has chosen not to have treatment."

Dr Fisher and Dr Young did not assign impairment ratings for the Applicant's medical conditions on examination and assessment during the qualification period (T8, T10 and T12). There is no evidence before the Tribunal that an impairment rating had been assigned to any of the claimed medical conditions prior to the qualification period.
right heel
Dr Mills reported that the Applicant's right heel condition was stable and assigned an impairment rating of 20 impairment points pursuant to Table 4 of Schedule 1B of the Act (Exhibit A3). However, the weight of the medical evidence before the Tribunal suggests that the injury to the Applicant's right heel was either not stabilised, or was considered to be temporary. Dr Fisher reported the condition to be long term and improving on 17 and 31 March 2000 (T8 and T10). On 13 April 2000, Dr Young reported the right heel injury to be temporary (T12).
On the weight of the evidence, the Tribunal prefers the contemporaneous reports of Dr Fisher and Dr Young and finds that the injury was healing and an operation was pending. The Applicant's own evidence reveals that this injury continued to improve and the planned operation is still pending.
The Tribunal notes that the Applicant initially declined Dr Deshpande's recommendation that an arthrodesis of the sub-talar joint operation be performed on his right heel, as he was fearful of such an operation at the time. The operation is listed for Wollongong Hospital and the Applicant is on a waiting list. The expected effect of the operation is to improve the functional capacity of the Applicant's right ankle, although it is not expected to improve flexibility in that joint. Thus, the Tribunal finds the ongoing and planned treatment, during the operative period, to be reasonable, whereby significant functional improvement could be expected within the next two years.
Taking these matters into account, the Tribunal finds that the Applicant's right heel injury was being treated, with further treatment planned, during the qualification period. The treatment comprised rest, physiotherapy and exercise, with analgesic and anti-inflammatory medication. An arthrodesis of the sub-talar joint was being considered and the injury was healing. This being the case, the Tribunal finds that significant functional improvement of the Applicant's right heel injury could be expected within two years.
The Tribunal finds that the injury to the Applicant's right foot was not fully treated or stabilised on the day of claim or during the qualification period thereafter, and therefore did not warrant or receive an impairment rating pursuant to Schedule 1B of the Act.
left foot
The injury to the Applicant's left foot had been treated and stabilised prior to the date of claim. The Applicant had received physiotherapy treatment for the injury to his left heel during the year after the accident in 1990. He returned to work even though the injury caused some pain and prevented him wearing safety boots. After being made redundant in 1994, the Applicant was declared by his treating doctor to be unfit for work for extended periods as a result of the injury to his left foot. This continued until the Applicant injured his right heel and ankle falling off a ladder.
The medical evidence does not suggest that the injury to the Applicant's left heel caused a significant impairment or a demonstrable loss of function, either on the day of claim or during the qualification period thereafter, and the Tribunal finds that the condition is recorded in only one of the three medical reports during the qualification period: Dr Young's report dated 13 April 2000 (T12). The condition was not being treated, and no further treatment was planned. This being the case, the Tribunal finds the injury to be stable, having healed without significant residual loss of function causing only occasional discomfort.
On the Applicant's evidence, his left foot was causing only occasional pain, but he was not able to wear safety boots because to do so caused pain in his left foot. Consistent with the medical reports from the qualification period, the Applicant did not report other functional incapacity related to his left foot. There is no evidence before the Tribunal that this condition prevented the Applicant walking without difficulty on a variety of different terrains and at varying speeds for distances of more than 500 metres.
In consideration of these matters, the Tribunal finds that the injury to the Applicant's left foot had not caused a significant loss of functions to warrant or receive an impairment rating above 'NIL', pursuant to Table 4 of Schedule 1B of the Act, during the qualification period.
lower back and leg pain
The Tribunal notes that the claimed leg pain was not referred to in the medical reports during the qualification period. The Applicant's lower back pain was only referred to, during the qualification period, by Dr Young, who referred to the pain as being intermittent on bending and a temporary condition (T12, folio 63). The Applicant's evidence is consistent with Dr Young's assessment that his back problem arose as a consequential effect of the injury to his right foot, with some resultant weight bearing impairment.
There is no evidence before the Tribunal to indicate that the back condition had either been fully treated or stabilised prior to or during the qualification period. The evidence is that it was a temporary condition that did not have a significant functional impact that would prevent the Applicant undertaking light duties.
On this basis, the Tribunal finds that the Applicant's lower back condition was not stabilised or fully treated, and was a temporary condition which did not, therefore, warrant or receive an impairment rating prior to or during the qualification period pursuant to Schedule 1B of the Act.
otitis externa
The medical evidence in relation the Applicant's otitis externa and related hearing conditions reveals that the condition was either long term, stable and intermittent (T10), or temporary (T12), during the qualifying period. The Applicant's evidence regarding his hearing problem indicates that it has an enduring but sporadic character. The Tribunal accepts that the Applicant's hearing condition may qualify as a permanent but intermittent condition.
Evidence of the episodic nature of symptoms related to the otitis externa and related hearing conditions, was reported by Dr Fisher (Exhibit A2), who reported 12 consultations with the Applicant concerning his hearing problems over an 11 year period, with no consultations occurring between 4 March 1999 and 12 October 2001. Dr Fisher's report did not address the severity and duration of occurrences of the condition. There is evidence that the condition has been treated intermittently with antibiotics (T10 and T12). Dr Fisher reported treating the condition on 11 September 2002 with Diclocil 500mgs four times per day. The Applicant was unable to recall any details pertaining to the severity, duration or frequency of occurrences of his hearing condition, or related consultations with his treating doctor, before or during the qualification period.
The medical evidence suggests that the functional effects of the condition were insignificant and infrequent. Absent evidence regarding the severity, duration and frequency of intermittent occurrences of the Applicant's otitis externa and related hearing conditions, it is not possible to provide an appropriate impairment rating for this condition. However, the Tribunal turned to consider Table 21 at Schedule 1B of the Act and applied a rating of two under Table 21.1 and a rating of "prolonged" under Table 21.2, thereby providing a rating of "D" under Tables 21.3. Assuming ten affected days per year and applying the "D" grading code, a rating of NIL resulted.
This being the case, the Tribunal finds that the Applicant's intermittent otitis externa and related hearing conditions did not warrant or receive an impairment rating above 'NIL' pursuant to Table 21 of Schedule 1B of the Act.
On this basis, the Tribunal finds that the Applicant does not have an impairment rating of more than 20 points under the Impairment Tables of Schedule 1B of the Act. Thus, the Applicant's claim does not satisfy the qualifying requirement of section 94(1)(b) of the Act.
continuing inability to work
Having found that the Applicant does not have an impairment rating of 20 impairment points, it is not necessary, therefore, to consider whether the Applicant has a continuing inability to work because of his impairments pursuant to section 94(1)(c) of the Act. However, the Tribunal notes that the Applicant agreed in evidence that he may be able to resume work comprising light duties on a full time basis, if he was able to do the work while sitting down. This confirms the weight of the contemporaneous medical opinion in evidence relating to the Applicant's capacity for work or training at that time. Further, the Tribunal notes that the Applicant agreed in evidence that his medical conditions did not currently prevent him undertaking educational or vocational training, and that he may be willing to undertake such training if it improved the likelihood of gaining employment. The Tribunal is of the view that the Applicant could benefit from such training.

CONCLUSION AND DECISION

Taking account of all of the material before it, the Tribunal finds that the Applicant does not qualify for disability support pension pursuant to section 94(1) of the Act. Thus, the Tribunal finds that the decision of the SSAT is the correct decision in the circumstances.

The Tribunal decides to affirm the decision under review.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  3 September 2002
Date of Decision  28 October 2002
Applicant self-represented
Advocate for the Respondent Mr G Lozynsky