Hockey and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2008] AATA 384

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 384

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4038

GENERAL ADMINISTRATIVE DIVISION		)
Re		GARRY HOCKEY

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr P McDermott, RFD Senior Member

Date13 May 2008  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd].........................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY –  Pensions, benefits and allowances – disability support pension – whether applicant has physical, intellectual or psychiatric impairment – applicant suffers from osteoarthritis and gouty arthritis– whether applicant has impairment rating of 20 points or more –  decision under review affirmed.

Social Security Act 1991 s94
Social Security (Administration) Act 1999 cl 4(1) Schedule 2

Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444

REASONS FOR DECISION

13 May 2008 Dr P McDermott, RFD Senior Member   

Introduction

1.      Mr Garry Hockey has made a claim for a disability support pension and I have to decide whether he is entitled to receive that benefit. My decision will largely turn on whether there is evidence that Mr Hockey had medical conditions which impaired his ability to work at the date of his claim or within a period of 13 weeks following the date of his claim.

PRIOR DECISIONS

2.      On 24 April 2007 Centrelink made a decision that Mr Hockey was not qualified to receive disability support pension.  

3.      On 9 August 2007 the Social Security Appeals Tribunal affirmed the decision of Centrelink which decided that Mr Hockey was not entitled to disability support pension.

4.      On 22 August 2007 Mr Hockey made an application to this Tribunal to review the decision of the Social Security Appeals Tribunal.

ELIGIBITY CRITERIA

5. The entitlement to a disability support pension is conferred by s 94 of the Social Security Act 1991 (“the Act”).

6.      A person is qualified for a disability support pension if the person has a physical, intellectual or psychiatric impairment (s 94 (1) (a)); and the person’s impairment is of 20 points or more under the Impairment Tables (s 94 (1) (b)); and the person has a continuing inability to work (s 94 (1) (c)). All of these requirements must be satisfied before a person is entitled to a disability support pension.

7. In considering whether Mr Hockey had a “continuing inability to work” I must have regard to the definition of that expression in s 94(2) of the Act. That definition requires a claimant to have an impairment which is, of itself, sufficient to prevent a person from doing any work or training within the next 2 years. In considering whether a claimant has a continuing inability to work the Secretary cannot have regard to the factors in s 94(3) of the Act. The term “work” is defined to be work of at least 15 hours per week that exists in Australia even if that work is not locally accessible (s 94(5)).

8. There are other provisions in s 94 that Mr Hockey satisfies. He is over the age of 16 years (s 94 (1) (d)) and he is an Australian resident (s 94 (1) (e)(i)).

IMPAIRMENT TABLES

9. The Impairment Tables which I am required to apply are in Schedule 1B of the Act.

10.     It is also necessary for me to have regard to the Introduction to the Impairment Tables.

11.     Paragraph 2 of the Introduction to the Impairment Tables provides that the Tables “are designed to assess impairment in relation to work”.

12.     Paragraph 4 of the Introduction to the Impairment Tables provides that a rating is only to be “assigned after a comprehensive history or examination”. The paragraph states that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

13.     Paragraph 5 of the Introduction to the Impairment Tables states that a condition must be considered to be permanent. That paragraph states that 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. The paragraph concludes with a statement that a condition will be considered to be fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.

14.     Paragraph 6 of the Introduction to the Impairment Tables states that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment or rehabilitation has occurred and whether any treatment is still continuing or is planned in the near future.

15.     In considering this application I have considered the following Impairment Tables: Table 4 (Function of the Lower Limbs); Table 20 (Miscellaneous) and Table 21 (Intermittent Conditions).

TIME FOR DETERMINING ELIBILITY

16.     For Mr Hockey to be qualified to receive the disability support pension, he must meet the eligibility criteria on the date of his claim, 9 March 2007, or within 13 weeks of the date of his claim[1].

[1] Social Security (Administration) Act 1999, Sch 2, cl 4.

EVIDENCE OF APPLICANT

17.     Mr Hockey gave evidence before me. Mr Hockey had remarked that he had relocated to Pottsville in June 2007 after working for a company in Sydney for 10 years. Mr Hockey stated that he had purchased a house in Pottsville some eight to nine months earlier.

18.     In his evidence he confirmed that he was currently not working. He had attempted a number of jobs in building, labouring as well as lawn mowing, but was unable to continue such work.

19.     In his evidence Mr Hockey stated that he certainly wanted to work and that he enjoyed work. He mentioned that he enjoyed working for his previous long-term employer. However, the tenor of his evidence was that he could not be a reliable employee because of his health condition. In his oral evidence at the hearing he confirmed that he was able to work for 3 hours per day.

20.     Mr Hockey confirmed that he completed a claim form for disability support pension which he signed on 9 March 2007. He stated that on that claim form he listed medical conditions of “osteoarthritis knees” and “gouty arthritis”[2].

[2] T5, folio 41.

21.     Mr Hockey discussed the effect that his osteoarthritis of his knee condition has on his ability to function. He stated that he can walk for 300 metres before needing to rest. He stated that he was able to mow his lawn although he would get somebody else to mow the lawn if it was overgrown.

22.     Mr Hockey stated that he has had a gout condition for some 30 years. When he was working he had on one occasion to take time off work for up to 10 days. In the past the longest period that he was affected by gout was 4 days. Since he has been treated by Dr Chin the incidence of the gout attacks has lessened. He now has attacks some 30 days of the year.

23.     Mr Hockey also discussed his sleep apnoea condition. He confirmed that he had yet to trial a CPAP machine. He stated that he was concerned about the cost of the machine although he had not yet looked into hiring a machine.

24.     Mr Hockey mentioned his hypertension condition and outlined the medication that he took for that condition.

25.     This year Mr Hockey put in a claim for disability support pension. However, the claim form discloses another medical condition which he discussed at the hearing. For privacy reasons it is not necessary to discuss the condition as there is no medical or other evidence before me that this condition had manifested itself within 13 weeks of the date of his claim.

26.     In giving evidence Mr Hockey expressed interest in participating in the personal support program of Centrelink.

27.     Mrs Diane Hockey gave evidence in support of his husband’s claim. She stated that her husband was in a lot of pain most of the time. In cross-examination she was asked about the physical activities of her husband. She stated that they work in the yard together. She also stated that her husband still mows the lawn although he might do this over a few days.  Mrs Hockey said that her husband’s gout was a “quality of life thing” making it difficult to plan their activities.

Treating Doctor’s ReportS

28.     Centrelink was provided with a “Treating Doctor’s Report” dated 8 March 2007 from Dr Julius Chin[3].

[3] T6.

29.     In his report Dr Chin lists condition 1, “osteoarthritis knees”, as a confirmed diagnosis, which causes knee pain and affects the applicant’s ability to function through “prolonged weight bearing; discomfort when climbing stairs and arising from sitting”[4]. The treatment is listed as “NIL” with future treatment of “physiotherapy/podiatrist”.  Dr Chin lists the impact of the condition as persisting for more than 24 months and over the next two years the condition is expected to deteriorate.

[4] T6, folio 57. 

30.       The second condition in the report is described by Dr Chin as “gouty arthritis”, which is also a confirmed diagnosis[5].  This condition causes recurrent acute joint pain.  Dr Chin reports that the gout condition is inactive as Mr Hockey takes regular medication.  The condition is treated with Zyloprim and there is no future or planned treatment.  Dr Chin confirms that the condition will persist for more than 24 months and he comments that the condition is “only a problem when gets an acute attack of gout”[6].  Provided that Mr Hockey stays on medication, Dr Chin anticipates that the condition will somewhat improve in the future[7]. 

[5] T6, folio 58. 

[6] T6, folio 59. 

[7] T6, folio 59. 

31.     Centrelink was provided with another “Treating Doctor’s Report” dated 29 June 2007 from Dr Julian Chin[8]. This report provided information in respect of the severe obstructive sleep apnoea condition of Mr Hockey.  The diagnosis of the sleep apnoea condition is recorded as being confirmed on 5 June 2007.  The condition was listed as causing poor sleep pattern; excessive daytime fatigue; snoring and poor concentration.  Further review by a respiratory physician was planned and the affects on the applicant’s ability to function were listed as “cognitive impairment, poor concentration, difficult focus and prone to sleeping during the day”[9].

[8] T19, folio 91.

[9] T19, folio 93.

32.     On 17 January 2008 Dr Chin provided a further “Treating Doctor’s Report”[10]. In that report Dr Chin further discusses the sleep apnoea condition of Mr Hockey. Dr Chin considers that further planned treatment was a review by a respiratory physician for CPAP machine time.

[10] Exhibit R5.

Treating Doctor

33.     Dr Chin gave evidence by telephone. Dr Chin confirmed that he was treating Mr Hockey for gout. Dr Chin stated that he has not seen Mr Hockey suffering from severe gout: he mentioned that he had never seen his knees swollen to a point where he could detect gout in the knee. Dr Chin opined that the knee condition of Mr Hockey is a consequence of osteoarthritis of the knees rather than gout. Dr Chin considered that the gout condition was being well managed as he has monitored the uric acid level in Mr Hockey’s blood.

34.     Dr Chin also confirmed that although Mr Hockey had sleep apnoea, further review by a respiratory physician was needed as well as a CPAP trial.

MEDICAL SPECIALIST REPORTS

35.     A number of medical specialist reports are in evidence before me. I will outline what reports are relevant to the claim of Mr Hockey.

36.     Dr Heiner, Consultant Thoracic and Sleep Physician, made a report on 7 January 2007[11]. In that report Dr Heiner has confirmed that Mr Hockey has serious and obstructive sleep apnoea. In that report he indicated an intention to carry out a CPAP study.

[11] Exhibit R1.

37.     Dr Scott, Thoracic and Sleep Physician, made a report on 27 June 2007[12]. In that report Dr Scott conducted a diagnostic sleep study in which he came to the conclusion that Mr Hockey has “severe obstructive sleep apnoea associated with increased arousals and moderate oxygen desaturations.

[12] Exhibit R2.

WORK CAPACITY ASSESSMENT REPORT

38.     On 3 March 2008 a “Job Capacity Assessment Report” was completed by Mr Hook, social worker, together with contributing assessor Mr Cheverton, Registered Psychologist.  The results of that assessment were as follows:

·Osteoarthritis, gout; hypertension and liver disorder were considered to be permanent.  A rating of 10 points was assigned to osteoarthritis of the lower limbs and 5 points assigned for gout.  Hypertension was assigned nil points as it is controlled effectively with medication.  The liver condition was assigned nil points as it was considered as having no verifiable affect on functional capacity. 

·In respect of sleep apnoea, a rating was not assigned as following consultation with Dr Chin, the assessor found that the condition was not fully diagnosed, treated and stabilised.  At page 7 of the report the assessor states “telephone discussion with Dr Chin on 6/3/08 reported the following…CPAP trial yet to commence to assess the most suitable treatment options for sleep apnoea…”

FINDINGS OF TRIBUNAL

39.     In determining this application I have considered the documented conditions of Mr Hockey.

40. The respondent, quite properly, has accepted that a number of conditions of Mr Hockey are impairments for the purposes of the Act (s 94 (1) (a)). These are osteoarthritis of the knees, gout, hypertension and sleep apnoea. There is uncontradicted medical evidence before me that Mr Hockey has these impairments.

41.     I next have to consider whether these conditions of Mr Hockey warrant him being assigned an impairment rating of 20 points or more under the Impairment Tables (s 94 (1) (b)); and whether he has a continuing inability to work (s 94 (1) (c)).

42.     I have already mentioned that paragraph 4 of the Introduction to the Impairment Tables provides that for “a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised”.

Hypertension

43.     I will initially consider the hypertension impairment. There is evidence before me in the “Treating Doctor’s Report” dated 8 March 2007 from Dr Julius Chin that the hypertension of Mr Hockey is well managed and would cause minimal or limited impact on the ability of Mr Hockey to function[13]. I have had regard to Table 20 (Miscellaneous) which provides that a nil rating is to be assigned for “Controlled hypertension”.

Osteoarthritis

[13] T6, fol 60.

44.     I will next give consideration to the osteoarthritis impairment of the knees of Mr Hockey. This has been a long-standing condition of Mr Hockey. In his evidence before me, which I accept, Mr Hockey stated that he was able to walk for 300 metres before resting. I also mention that Mr Hockey told the authorised review officer that he was able to walk about 300 metres without having to stop or rest[14]. In my opinion a rating of 10 points is appropriate for this rating as the second descriptor for the 10 rating for Table 4 (Function of the Lower Limbs) refers to “Pain or claudication restricts walking to 250-300m or less, at a slow to moderate pace (4km/h). Can walk further after resting”.

[14] T16, fol 84.

45.     The first descriptor for the rating of 10 points in Table 4 (Function of the Lower Limbs) is as follows:

“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.”

46.     In his evidence Mr Hockey stated that he was able to do lawn mowing: he stated that he mowed his own lawn over a few days and he had attempted a lawn mowing job. As he was able to mow his lawn albeit in stages and can walk up to 300 metres I have taken the view that Mr Hockey has “moderate interference with walking” in terms of this first descriptor to the rating of 10 points.

47.     I have mentioned that the first descriptor for the rating of 10 points in Table 4 (Function of the Lower Limbs) also refers to moderate interference with “climbing” and “sitting”. There is evidence before me in the “Treating Doctor’s Report” dated 8  March 2007 from Dr Julius Chin that the osteoarthritis impairment Mr Hockey causes “discomfort in “climbing stairs” and “arising from sitting”[15]. This evidence from Dr Chin fortifies me in concluding that the 10 point rating is appropriate for the osteoarthritis impairment.

Gout

[15] T6, fol 57.

48.     I will now give consideration to the gout impairment of Mr Hockey.  In the “Treating Doctor’s Report” dated 8 March 2007, Dr Julius Chin has reported, under the current symptoms section, that the gout condition is “inactive”, although Dr Chin has recognised that Mr Hockey may have an acute attack of gout[16].

[16] T6, fols 58 and 59.

49.     I have assigned a rating of 5 points under Table 21 (Intermittent Conditions) for this impairment. I give my reasons for that rating.

50.     Under Table 21 (Intermittent Conditions) I am required to give consideration to the “severity”, “duration” and “frequency” of an attack.

51.     Table 21.1 of the Impairment Tables refers to the “severity” of the attacks. In his evidence Mr Hockey stated that he has to rest during an attack. I am satisfied that the severity of the attacks can be rated as three: “loss of efficiency is discernable in many everyday activities.  Some elements of self-care are restricted but in most respects, independence is retained.  Bed-rest is often necessary during an attack”.

52.     Table 21.2 refers to the “duration” of the attacks. I accept the evidence of Mr Hockey that when a gout attack occurs it can last for more than one day. This places the condition in the “prolonged” category in that Table as “lasting more than four hours”.

53.     Table 21.3 of the Impairment Tables provides that a severity rating of 3 with a prolonged duration, results in a grading code of F[17].

[17] T4, folio 22

54.     To assign a rating it is necessary to apply Table 21.4 (Assignment of a rating). Mr Hockey has given evidence that he has the attacks for about 30 days a year. Under Table 21.4 that frequency of attacks together with a grading code of F attracts a rating of 5 points.  I consider that this rating is the most appropriate rating.

Sleep apnoea

55.     I will next consider the sleep apnoea impairment of Mr Hockey. The “Treating Doctor’s Report” dated 29 June 2007 from Dr Julius Chin[18]  provides information in respect of the severe obstructive sleep apnoea condition of Mr Hockey.  The diagnosis of the sleep apnoea condition is recorded as being made on 5 June 2007. The Secretary has conceded that this diagnosis was made within the 13 week period following the claim of Mr Hockey. However, there is specialist opinion that Mr Hockey had the sleep apnoea condition prior to the date of his claim. Dr Heiner, in his report of 7 January 2007 made a diagnosis that Mr Hockey has serious and obstructive sleep apnoea[19]. This specialist diagnosis was later confirmed by another specialist, Dr Scott, on 27 June 2007[20].

[18] T19.

[19] Exhibit R1.

[20] Exhibit R2.

56.     The evidence of both Mr Hockey and Dr Chin has confirmed that Mr Hockey has yet to undergo a review by a respiratory physician as well as undertaking a CPAP trial. As this impairment has not been investigated, treated and stabilised I am prevented by Paragraph 4 of the Introduction to the Impairment Tables from assigning a rating to this impairment. I have also had regard to Paragraph 6 of the Introduction to the Impairment Tables which provides that in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider what treatment is planned in the near future.

Other conditions

57.     For the sake of completeness I should mention that I have examined all of the recorded medical conditions of Mr Hockey. The “Treating Doctor’s Report” dated 8 March 2007 from Dr Julius Chin mentions that the high cholesterol and fatty liver conditions of Mr Hockey are generally well managed and cause minimal or limited impact on the ability of Mr Hockey to function[21]. Having regard to Paragraph 2 of the Introduction to the Impairment Tables which provides that the Tables “are designed to assess impairment in relation to work”, I assign an impairment rating of nil for both the high cholesterol condition and the fatty liver condition of Mr Hockey.

[21] T6, fol 60.

58. I have come to the conclusion that Mr Hockey should be assigned an impairment rating of 15 points on the basis of his conditions which are impairments for the purposes of the Act.

Continuing inability to work

59. As I have concluded that Mr Hockey must be assigned a total of 15 impairment points it is not strictly necessary for me to determine whether Mr Hockey has a continuing inability to work. However, as Mr Hockey has strongly pressed that his osteoarthritis impairment should attract a rating of 20 points, I feel that it is appropriate for me to consider the application of s 94(2) of the Act. In order for the Secretary to conclude that a person has an inability to work because of an impairment it is necessary that the criteria in both s 94(2) (a) and s 94 (2) (b) be met. This is indicated by the presence of the distributive word “and” in s 94(2).

60.     In Secretary, Department of Social Security v Pusnjak[22] Drummond J made reference to the explanatory memorandum of the amendment which is now s 94(2)(a) of the Act. His Honour[23], formulated the test that I must now consider: “As to s 94(2)(a) Does the impairment of itself, i.e., considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant’s capacity for work that it prevents him from working anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining?”

[22] (1999) 56 ALD 444

[23] Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at 452.

61. In considering the application of s 94(2)(a) of the Act which refers to “work”, I must consider the definition of “work” in s. 94(5) of the Act which refers to work for at least 15 hours per week. I have relied upon the evidence of Mr Hockey himself who has stated before me that he is capable of working 3 hours per day. This work capacity equates to 15 hours of work per week. I conclude that s 94(2) (a) has no application to this case.

62. I now turn to s 94(2) (b) of the Act. I mention that for a claimant to be successful it is necessary for the claimant to satisfy either s 94(2) (b) (i) or s 94(2) (b) (ii) of the Act.

63.     In Secretary, Department of Social Security v Pusnjak[24] Drummond J, at 452, formulated the test under s 94(2) (b) (i) of the Act. His Honour remarked: “As to s 94(2) (b) (i): Is the impairment of itself sufficient of itself to prevent the particular pension claimant undertaking, i.e., commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?”

[24] (1999) 56 ALR 444

64.     Mr Hockey in his evidence before me stated that he was willing to undertake the Personal Support Program. The components of this Program were outlined to Mr Hockey at the hearing and are in evidence before me[25]. Essentially the Personal Support Program is a course of training which is intended to assist Mr Hockey to “work through his presenting non-vocational barriers”. In my view the Personal Support Program is a course of retraining which is intended to fit Mr Hockey for a class of work as contemplated by s 94(2)(b) of the Act. There is no evidence before me that the impairments of Mr Hockey are of themselves sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next two years in the terms of s 94(2)(b)(i) of the Act. Mr Hockey has a good attitude to being part of the workforce.

[25] Exhibit R7 (Job Capacity Report) at  8.

65. I have also considered the application of s 94(2) (b) (ii) of the Act. In Secretary, Department of Social Security v Pusnjak[26] Drummond J, at 452 [32], formulated the test under that provision: “As to s 94(2)(b)(ii): If there is available training of a kind capable of fitting the claimant within a 2-year period for work which he cannot now perform, for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete the training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?” His Honour remarked[27], that an affirmative answer to this question would mean that “the applicant will not be eligible for the pension”.

[26] (1999) 56 ALD 444

[27] (1999) 56 ALD 444 at [32]

66.     I have accepted the job capacity assessment that Mr Hockey has a future work capacity of up to 22 hours per week within 2 years. Prior to the hearing Mr Hockey himself has remarked that he could work 20 hours per week on his computer if such work were to be available[28]. I therefore consider that Mr Hockey does not satisfy the test in s 94(2) (b) (ii) of the Act.

[28] T2, fol 6.

67. I appreciate that Mr Hockey has a legitimate concern that there is no suitable employment for him in Pottsville. However, the Act provides that I cannot have regard to the availability to Mr Hockey of work in his locally accessible labour market (s. 94(3) (b)).

68.     Having regard to all of the evidence before me I have came to the conclusion that Mr Hockey is not entitled to disability support pension.

DECISION

69.     I affirm the decision under review.

I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD Senior Member

Signed:         .....................................................................................
  E. Young, Research Associate

Date/s of Hearing  29 April 2008
Date of Decision  13 May 2008

ApplicantMr Hockey himself, accompanied by

Diane Hockey

Respondent  Ms M Brazier, departmental advocate