Holbut and Department of Family and Community Services

[2000] AATA 433

DECISION AND REASONS FOR DECISION [2000] AATA 433

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q99/743

GENERAL ADMINISTRATIVE  DIVISION       )      
           Re      JEFFREY HOLBUT          
  Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr EK Christie, Member    

Date2 June 2000   

PlaceBrisbane

Decision      The Tribunal varies the decision under review to the extent that Mr Holbut's impairment attracts a rating of 20 points.  However, because of the Tribunal finding that Mr Holbut does not have a continuing inability to work, the Tribunal decides that Mr Holbut does not qualify to receive disability support pension.          

(Sgd)   EK CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY - disability support pension - assessment of impairment - whether continuing inability to work.

Social Security Act 1991 ss 94(1), (2), 100(3)
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

2 June 2000          Dr EK Christie, Member                

1. This is an application by Jeffrey Holbut to review a decision of the Social Security Appeals Tribunal ("the SSAT") on 3 June 1999.  The SSAT affirmed the decision of an Authorised Review Officer made on 14 April 1999 to reject Mr Holbut's claim for disability support pension ("DSP").

2. The SSAT concluded that Mr Holbut's impairment rating did not satisfy the statutory requirement of 20 points and therefore he did not qualify to receive DSP.

3. At the hearing Mr Holbut represented himself.  Mr R McQuinlan, a Departmental Advocate represented the Department.

4. At the hearing the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal 1975, the "T" Documents (Exhibit 1) and the following exhibits:

• Exhibit 2            Medical Assessment Report:  Dr Yang (HAS) – 20 October 1999

• Exhibit 3            Treating Doctor Report:  Dr Springhall – 30 August 1999

• Exhibit 4            Medical Report of Dr Herd – 13 January 2000

1. Issues emerged during the hearing which required the Tribunal to exert its inquisitorial powers.  These issues sought:

• to clarify the total impairment points determined by Dr Herd in his report (Exhibit 4).  Dr Herd's response was received by the Tribunal on 13 March 2000;

• to clarify with Dr Yang the appropriate impairment table and assessment of impairment points in relation to Mr Holbut's three medical conditions specified by his treating doctor, Dr Springhall (Exhibit 3).  Dr Yang's response was received by the Tribunal on 18 April 2000.

Copies of the responses received from each doctor were sent to the parties inviting them to make supplementary submissions.
Issues before the Tribunal

1. The first issue for the Tribunal to decide was, firstly, whether Mr Holbut met the 20 point impairment threshold for his medical conditions.  If so, the next issue to decide was whether Mr Holbut had a continuing inability to work.
   Facts

2. On the basis of the evidence before it, the SSAT made the following findings:-

• Mr Holbut claimed disability support pension on 18 December 1998;

• Mr Holbut has osteoarthritis with back and feet pain and resultant loss of one-quarter range of movement in his thoraco-lumbar spine; and

• Mr Holbut has a history of peptic ulcer disease with symptoms controlled by medication (Document T2 Folio 7).

Evidence of Jeffrey Holbut

1. Mr Holbut stated that he met the 20 point impairment by referring to Dr Herd's report (Exhibit 4, page 2):

   "10 points for cervical and thoracolumbar spine"

2. Mr Holbut said that any HSA assessment of impairment points by reference to the Treating Doctor's (Dr Springhall) Reports 1 and 2 (Document T6, 12 December 1998; Document T18, 27 May 1999) would be a major limitation for accurate assessment.  He said that these reports were based on only partial medical history for his condition – a condition going back to the late 1980s.  As a result, any assessment of impairment points by HSA would be incorrect.  Furthermore, the information contained in Document T6 was very brief;  the information in Document T18 whilst "considerably more comprehensive" was still well short of the information contained in the Treating Doctor's (Dr Springhall) Report number 3 (Exhibit 3, 30 August 1999). 

3. Mr Holbut said that Dr Springhall's report (Exhibit 3) was the most comprehensive in terms of his medical history.  This report referred to three medical conditions:

• Osteoarthritis

• Arthritis

• Sciatica in 1991

He said that these conditions had been "virtually ignored" by Centrelink.  He then referred the Tribunal to the HSA Doctor's Report (Dr Yang) [Exhibit 2, 20 October 1999] which referred only to:

• Condition 1 – chronic pain symptoms

• Condition 2 – peptic ulcer disease

That is, he said Dr Yang had either ignored the conditions described in Dr Springhall's report (Exhibit 3) or did not address them in his assessment.

1. Given the chronology of Dr Springhall's and Dr Yang's reports (See paragraph 10), Mr Holbut said that he had assumed that the earlier report of Dr Springhall (Exhibit 3) was made available to Dr Yang when he made his assessment of impairment points.  Furthermore, if some of the conditions identified by Dr Springhall were not addressed in Dr Yang's report, then he should have been provided with some reasons for Dr Yang reaching such a conclusion.

2. Mr Holbut then referred to Impairment Tables "21.1", "21.2" and "21.3" and stated that consideration of these Tables for his conditions would bring him into a category of "20 plus" impairment points.

3. In terms of his medical conditions and his ability to work, Mr Holbut said:

• that he took medication every day ("oral cortisone");

• that for important personal and business appointments he would medicate three days in advance in order to avoid complications preventing him attending the appointment;

• that he was totally immobilised and bedridden following an arthritis/osteoarthritis "attack";

• that his condition had deteriorated over time;

• that over a period of one month his medical conditions would leave him incapable of any work for at least 3 days per month – sometimes weeks;

• that, given these problems, employment would be difficult as he could not guarantee continuity of work attendance because of his medical conditions; and

• that as a result he had no work alternative than to seek self-employment by purchasing a small farm.

1. Under cross-examination by Mr McQuinlan, Mr Holbut said:

• that he purchased a mango orchard because it was the "easiest form of farming";

• that his farm role involved basic maintenance work, tractor-operated slashing and tree spraying;

• that he carried out minor maintenance around the farm and home;

• that his medical conditions generally meant that he could only drive for about one hour at a time.  He would then be in extreme pain and so would have to stop driving and move around; and

• that he had about 35 to 40 years past work experience in industrial sales of electrical equipment, general electric work and eventually had become a qualified electrician.

1. During cross-examination, Mr Holbut agreed with the following statement in Dr Herd's report:

   "e)       In your opinion can the applicant do or retrain to do within two (2) years time, light duties?
   E.        Yes – I have advised re-training to non-manual light duties."
   (Exhibit 4 page 2)

2. Mr Holbut accepted Mr McQuinlan's proposition it was not a problem for him to do the work in a job involving "light packing" or "answering telephones".  However, the problem was that of continuity of employment because of his medical conditions.  In addition, he believed that he could not sustain the level of medication that would be required to enable him to work regularly, because of the adverse side-effects of the medication levels he would have to take.

3. During further cross-examination, Mr Holbut indicated that he had spoken to his Treating Doctor (Doctor Springhall) about his conversation with Dr Yang re Mr Holbut's continuing inability to work.  Whilst Dr Springhall had indicated to Mr Holbut that he had spoken to Dr Yang, although not willing to elaborate, he acknowledged that he had given the advice indicated in Dr Yang's report.

Contentions and Submissions of the Parties

1. Mr McQuinlan submitted that Mr Holbut did not meet the 20 impairment points criteria.  The HSA doctor, Dr Bowert (Document T, 15 February 1999), who had identified conditions of "back pain" and "peptic ulcer disease" (Folio 73), had made an impairment rating under Table 5.1 of 10 points (Folio 74).

2. Mr McQuinlan contended that Dr Yang's report (Exhibit 2) had considered Dr Springhall's most recent report (Exhibit 3) and had conceded there may have been some inconsistencies in material previously available for assessment.  As a result he had varied the impairment assessment to 15 points.

3. Mr McQuinlan contended that Table 20, used by Dr Yang, was the appropriate impairment table to assess the whole person of Mr Holbut i.e. because pain was Mr Holbut's main complaint.  The use of Table 21 would also have avoided the problem of "double counting" of impairment points.

4. Mr McQuinlan submitted that Dr Herd's report (Exhibit 4) could not be relied upon to assess Mr Holbut's conditions as 20 points, because it would involve a "double count" for neck and back using Tables 5.1 and 5.2.  The correct approach was to guard against double counting by selecting the appropriate Table and to then assign the impairment rating (see Document T3 Folio 19).

5. In terms of Mr Holbut's ability to work, Mr McQuinlan made the following submissions:

• Divergent medical opinion existed.  Whereas the treating doctor's opinion had a clear view that Mr Holbut could not work or retrain for work within two years (Exhibit 2).  However, two HSA doctors had contrasting views.  Dr Bowert's opinion (Document T7 Folio 77) was that Mr Holbut was likely to be fit for any work, now, for 30 hours per week; or within 2 years for 30 hours per week.  It was Dr Yang's opinion (Exhibit 2) that Mr Holbut could do light work.

• Finally, Dr Herd (Exhibit 4) stated that Mr Holbut could undertake retraining for light manual duties.

1. Mr McQuinlan concluded by submitting that the appropriate assessment of impairment for Mr Holbut was 15 points.  Moreover, that Mr Holbut had a capacity for light sedentary work as evidenced by his being able to do semi-maintenance work and light duties around the farm and home.

2. In reply, Mr Holbut made the following submissions:

• Divergent viewpoints existed in the medical opinions in relation to possible days of work absence each month.  The treating doctor's estimate was 4 or more days per month, compared with less than, or 1 – 3 days a month – the estimate of HSA (Dr Yang).

1. However, the potential days absence, together with his needs for regular breaks for movement, would act to affect his continuity to do any work in a way that could guarantee reliable and constant work attendance to satisfy an employer.
   Supplementary Submission

2. Dr Herd's supplementary submissions (13 March 2000) stated that he considered Mr Holbut's "disability rating to be 10% cervical spine and 10% for lumbar spine i.e. a total of 20 points".

3. Dr Yang's supplementary submissions stated that, using the following Tables for assessment of Mr Holbut's medical conditions, the following ratings could be made:

   Table 5.1 (Spinal Function – Cervical Spine):  0 points
   (because a separate cervical spine impairment or condition had not been identified by the Treating Doctor at the time)

   Table 5.2 (Spinal Function – Thoraco-lumbar-sacral Spine):  10 points

   Table 20 (Miscellaneous – Pain):  15 points

   Table 21 (Intermittent Conditions)  0 points
   (for intermittent joint pains due to gouty arthritis)

1. In addition, Dr Yang stated that the higher rating under Table 20, compared with Table 5.2, was considered to "remain appropriate" to reflect Mr Holbut's overall degree of impairment.  Also, that this level of impairment was compatible with an ability for Mr Holbut to perform light semi-sedentary work.

2. Mr Holbut submitted that Dr Yang's assessment under Table 20 (Pain) was incorrect as it totally ignored his conditions of sciatica and arthritis.

3. Mr Holbut further submitted that Dr Yang's nil rating for various "intermittent joint pains" (Table 20) were founded on an incorrect basis.  In particular, there were records indicating the severity, frequency and duration of these episodes associated with his Treating Doctor's reports;  these reports provided medical opinion on Mr Holbut's ability to work.

4. Mr Holbut challenged the basis for Dr Yang's opinion as to the adequacy of the treatment and stability of his gout condition stating that he had followed a special diet and had taken medication for this condition for some 20 years.  Dr Springhall and Dr Herd could confirm this aspect.  Mr Holbut submitted that whilst it may have been correct that he was free of gout around mid-December 1999, this was no longer the case.  He has had several attacks of gout since Christmas 1999.

5. Mr Holbut also submitted that Dr Yang was incorrect when he concluded in his supplementary submissions that a separate rating from Table 4 (Function of the Lower Limbs) was not indicated on the basis that a definite neurological deficit from the lumbar spinal condition had not been diagnosed.  Mr Holbut said such medical evidence had existed since 1991 (Document T19 Folio 107).  Furthermore, Dr Springhall had referred to it [as spinal stenosis] in his Treating Doctor's Report (Exhibit 3 page 2).

6. Mr McQuinlan's supplementary submissions stated:

• that it was difficult to see how Dr Herd could assign a 10 point rating if Mr Holbut's oral evidence to the Tribunal was correct in that he had lost ¼ range of movement to his cervical spine.  Such a loss of range of movement would equate to a rating of only 5 points under Table 5.2;

• that all of the medical practitioners whose reports have been submitted to the Tribunal had indicated that Mr Holbut has the capacity to do light work.  Furthermore, Dr Yang had taken steps to check with Mr Holbut's Treating Doctor whether Mr Holbut had the capacity to do light semi-sedentary work on a full-time basis.  Dr Yang was advised that this was the case (Exhibit 2, typed attached).

1. Mr McQuinlan concluded with the contention that Mr Holbut did not qualify for DSP because he did not have the required impairment rating of 20 points and did not have a continuing inability to work as defined by the Act.
   Consideration of the Issues

2. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.  The relevant legislation is the Social Security Act 1991.

3. Section 94 of the Act provides for the eligibility for disability support pension and the question of "continuing inability to work".

   "SECTION 94 QUALIFICATION FOR DISABILITY SUPPORT PENSION – CONTINUING INABILITY TO WORK

   94(1)    [Qualification – continuing inability to work]       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;
             …..

   Meaning of continuing inability

   94(2)    [Meaning of 'continuing inability to work']          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.

   94(3)    [Secretary not to have regard to certain matters]      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."

1. In Freeman v Secretary, Department of Social Security (1988) 15 ALD 671, Davies J stated at 674:

   "Regard must always be had to the nature of the decision under review… This was because the function of the Administrative Appeals Tribunal formed part of an administrative continuum and, in reviewing a refusal to grant a pension or benefit that had been applied for, it was proper for the Tribunal to consider the entitlement to the pension not only as at the date of the application for the pension or benefit or at the date of the decision refusing to grant it but also up to the time of the Tribunal's decision."

In Mr Holbut's case, the decision under review was a decision refusing to grant a pension following an application for DSP being made on 18 December 1998.

1. The first question for the Tribunal to decide is whether Mr Holbut's medical conditions attract a rating of 20 points or more.  The Tribunal has carefully considered all of the medical evidence and materials before it and concludes that it prefers the evidence of Dr Herd and Dr Springhall and Dr Bonert relative to Dr Yang.  Accordingly, the Tribunal concludes that applying Table 20 (Pain) to the medical opinion of Dr Herd, Exhibit 3;  Dr Bonert, Document T7 Folio 74 (Impairment Rating of 10 points for Table 5.1) and the clinical conditions diagnosed by Dr Springhall, Documents T6, T18 and Exhibit 3) and the oral evidence of Mr Holbut, that Mr Holbut has -

   "More severe symptoms with a decreased ability/efficiency to carry out many everyday activities.  Most daily activities can be completed with some difficulty.  Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue.  Symptoms cause significant interference with ability to perform or persist with work-related tasks.  Symptoms may cause prolonged absences from work."

and so attracts a rating of 20 points for impairment under this Table.

1. However, in terms of Mr Holbut's continuing inability to work, the Tribunal concludes that, on the balance of probabilities, the weight of medical evidence, complemented with Mr Holbut's oral evidence, indicates that Mr Holbut does not have a continuing inability to work.  Specifically –

• Dr Bonert (Document T7 Folio 80): "…is now fit for full-time sedentary work e.g. engraver, telephonist, garage attendant";

• Dr Yang (Exhibit 2): "…Mr Holbut retains the capacity to undertake light semi-sedentary work on a full-time basis";

• Dr Yang (Exhibit 2):  "Dr Yang indicated in a typed attachment that he had contacted Dr Springhall who 'agreed that based on only medical restrictions, Mr Holbut retained the capacity to undertake light semi sedentary work on a full-time basis provided he had the freedom to vary his posture as required'."; and

• Dr Herd (Exhibit 4):  "In answer to question (e) [from Welfare Rights Centre] 'In your opinion can the applicant do or retrain to do within two (2) years time light duties', Dr Herd indicated 'Yes – I have advised re-training to non-manual light duties'."

Accordingly, the Tribunal has no option other than to find Mr Holbut does not have a continuing inability to work.

1. The Tribunal further finds Mr Holbut to be an honest, credible witness whose evidence was characterised by completely forthright responses during cross-examination.

2. The Tribunal makes the observation that, although this application for DSP was unsuccessful, Mr Holbut should make a fresh application to enable the question of his inability to work to be re-assessed in light of the findings on impairment made by the Tribunal.  Such a re-assessment should also incorporate some of the concerns raised by Mr Holbut at the hearing as they would have an additional (or cumulative) and direct effect on the question of his continuing inability to work (see paragraphs 13, 16, 24, 25 and 30).  In particular, these concerns of Mr Holbut should be addressed by medical opinion in terms of whether/how they "may cause prolonged absences from work" including the length and/or extent of the absences.

1. For all of the above reasons, the Tribunal varies the decision under review to the extent that Mr Holbut's impairment attracts a rating of 20 points.  However, because of the Tribunal finding that Mr Holbut does not have a continuing inability to work, the Tribunal decides that Mr Holbut does not qualify to receive disability support pension. 

   I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

   Signed:         Emma Oettinger      
     Associate

   Date/s of Hearing  18.2.00
   Date of Decision  2.6.00      
   Rep. for the Applicant              Applicant appeared in person
   Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate