Horner and Department of Family and Community Services - [2000] AATA 873

DECISION AND REASONS FOR DECISION [2000] AATA 873

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1235

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

DECISION

Tribunal Dr J D Campbell

Date29 September 2000
PlaceNewcastle

Decision The Tribunal sets aside the decision under review and in substitution therefor finds that the Applicant qualified for disability support pension at the date of claim.

[Sgd] Dr J D Campbell
Member
CATCHWORDS
Social Security - voluntary redundancy - disability support pension - assessment - continuing inability to work

Social Security Act 1991, sections 94, 100, Schedule 1B

REASONS FOR DECISION

Dr J D Campbell

Mr D Horner ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal ("the SSAT") dated 12 July 1999, which affirmed the decision dated 23 September 1998 of an authorised delegate of the Secretary, Department of Family and Community Services ("the Respondent") that the Applicant did not qualify for a disability support pension. This decision was reviewed and affirmed by an authorised review officer in a decision dated 19 October 1998.
A hearing was held before the Tribunal in Newcastle on 5 May 2000, at which the self-represented Applicant presented oral evidence. The Respondent was represented by Ms Smith, an advocate from the Administrative Law Section of Centrelink.
The following material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T33 pp1-113
Medical Report of Dr Keen dated 13 January 2000      Exhibit R1
Letter to Mr Moss from Centrelink dated 10 January 2000     Exhibit R2
Letter to Centrelink from Mr Moss dated 13 January 2000     Exhibit R3
Medical Report of Dr Wingate dated 28 October 1999 Exhibit R4
Medical Report of Dr Kamolkar dated 23 December 1999      Exhibit R5
Letter to Centrelink from Mr Moss dated 8 December 1999    Exhibit R6
Respondent's statement of facts and contentions dated 13 January 2000   Exhibit R7

issues

The relevant issues between the parties are:
1.whether, for the purposes of subsection 94(1) of the Social Security Act 1991, the Applicant has a physical, intellectual or psychiatric impairment and whether that impairment is 20 points or more under the impairment tables in schedule 1B; and
2.If so, whether the impairment is of itself sufficient to prevent the Applicant

from doing any work within the next two years; and
from undertaking educational or vocational training or on-the-job training during the next two years; or
whether such training is unlikely (because of the impairment) to enable the Applicant to do any work within the next two years.

legislation

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1), (2), (3), (4) and (5), 100(3) and the tables for the assessment of work-related impairment for disability support pension ("Schedule 1B Impairment Tables").
background
The Applicant was born on 19 July 1962 and after working in a number of activities, accepted voluntary redundancy on 7 August 1998. A claim for disability support pension was made on 17 August 1998 (T3). A treating doctor's report dated 18 August 1998 was received (T6) together with supporting medical documentation (T9,10,11,12,13). A whole person medical assessment was undertaken on 11 September 1998 (T15). The Applicant's claim was disallowed on 23 September 1998 on the grounds of the Applicant not having a continuing inability to work (T19). This decision was reviewed and affirmed on 6 October 1998 (T3), by the authorised review officer in a decision dated 19 October 1998 (T29) and by the SSAT dated 12 July 1999 (T2).
evidence – the applicant
The Applicant told the Tribunal that he left school after third form and worked with his father and brother bee farming for the next three to four years, after which he worked as a driver and machinery officer in a quarry for three years. A further period of bee farming for three years was followed by working shift work in a cement works for three years after which he worked in a quarry for five years. A period of 18 months working as a coal miner ended because of asthma, which is now well controlled, and in 1991 he commenced work as a linesman with Prospect Electricity (later, Integral Energy).
The Applicant stated that three months after commencing duty he ruptured his L5/S1 disc on 11 November 1991 while lifting cable. He had a number of radiology scans, an epidural block, was on and off work and placed on light duties prior to a laminectomy being undertaken on 1 April 1993. After his operation the Applicant stated he continued to have sciatica down to the left leg and cramps in the left calf. When he tried to work he had sciatic pain and in July 1993 he was placed on light duties.
The Applicant informed the Tribunal that his light duty work involved two distinct aspects:
(a)Line Inspector: this involved a lot of driving, getting in and out of a vehicle on numerous occasions. This activity aggravated his back.
(b)Clerical Work: this involved entering timesheets into the
computer, manual ordering of stores, checking
instruments, traffic control, letter box drops and
cleaning.This activity was performed at his own
pace and within his comfort levels. He worked in a
small depot and felt no pressure.

The Applicant described to the Tribunal that as a result of using his right leg for everything, his right knee became damaged in 1995. He received a cortisone injection which did not help, and that an arthroscopy in September 1995 revealed the condition of Chronomalacia Patellae. He stated that his right knee was sore and swollen and that he was off work for one month. This was deemed a compensible injury; prior to this he used to walk to and from work, a distance each way of 1.2 kilometres.
The Applicant stated that while on restricted duties at work, while he was at work for the required period, his duties did not necessarily occupy his work time. In mid 1998 the Applicant was offered redundancy which he did not accept, followed by an offer of a job in Lithgow which involved travel of one and a quarter hours each way, which he did not accept. A further offer of redundancy was made which he accepted and he left Integral Energy on 7 August 1998. The Applicant applied for disability support pension in September 1998, because he thought he would not get a job, only having effectively worked for a couple of hours each day in his last work activities.
The Applicant also informed the Tribunal of his wife's condition of severe chronic bronchiectasis, since three years of age and Pink's disease and the need for continuing care which he provides. He stated that she has not been in hospital for five years, is worse in winter, and that they have moved to the coast because of a more temperate climate, but as a result of his wife's illness they tend to be fairly anti-social. The Applicant indicated that he does all the housework and gives physiotherapy to his wife for half an hour each day. He receives a partner allowance but not a carer's allowance. He undertakes shopping and washing duties, and drives his wife to the doctor. While once a keen gardener, he has had to cease this activity.
In describing the symptoms of his various conditions the Applicant made the following comments:
(a)      Low back condition:           pain in lower back posteriorly; not there all
  the time; increase in pain depends on what
  he has done; no difference in summer or
  winter; pain radiates to left hip and to left
  leg. He has had no sciatic pain for two
  weeks prior to the hearing, with the sciatic
  pain before this period arising from over-
  exertion. Medication: Indocid tablet three
  times a day; Panadeine Forte – two tablets
  as required;
(b)      Right knee:  pain under right knee cap. The pain is
more than an ache on occasions and is
associated with some swelling;
(c)Eyesight:  he has a lot of different glasses; is unable
to work on computer screens for any period
of time; does watch television; does not
read much because of eye strain;
(d)Hypertension:  present since 1997; well controlled on
medication;
(e)Hearing:  trouble with hearing in both ears; together
with tinnitus.
In relation to his ability to work the Applicant stated that he has difficulty with bending, standing around causes pain, and that he needs different seating (vehicle seat). Walking is alright, swimming good, but walking up and down stairs causes pain. He can lift if he is in the right position, and can squat but has difficulty rising from the squatting position. He enjoys variable sleeping habits and has some difficulties after driving for two hours. He does use public transport for up to an hour, and he no longer gardens or goes trout fishing. He has difficulties in dealing with people and with the English language. He is reasonable with figures but not with spelling. He rates eyesight as important in his capacity for work and this is not good in his opinion.
medical evidence
The Applicant, in his claim for disability support pension stated that his nominated conditions often made it difficult for sitting (back pain), standing (back and leg), walking (leg), lifting and carrying (depends on weight) and all the time when bending (back and knee) and often when sleeping (back and leg aching) (T3, p44).
In a treating doctor's report dated 18 August 1998, Dr Kamkolkar described the patient's conditions as:
(a)chronic lumbarsacral pain since November 1991. Present as a constant nagging pain, unable to lift, bend or climb, has to sit and walk alternately most of the time. Radiating pain to left leg. Long term and fluctuating;
(b)right knee damage – including medial meniscus. Constant pain. No relief following arthroscopy and lateral ligament release. Long term and constant; and
(c)deafness in both ears with pulsating tinnitus. Long term and deteriorating.

Dr Kamkolkar opined that the Applicant was never likely to work again as his work ability would be affected by his various impairments to the extent that:
           (a)      he would be absent from work four or more days a month;
           (b)      he would be unable to work full days because of endurance problems;
           (c)       he would unable to travel or move around independently;
           (d)      he would not be able to alternate between tasks; and
           (e)      he would be unable to lift, carry and move objects.      (T6)

In a whole person assessment report dated 11 September 1998, Dr Swan, a medical practitioner, detailed that the Applicant had a loss of half the normal range of movement of the thoraco lumbar spine, that there was a wasting of the right quadriceps and the Applicant had pain radiating down the left leg two or three times per week, which forces him to stop. Dr Swan reported that sometimes there was no pain on weight bearing, and that there was difficulty in walking on uneven surfaces or stairs, and difficulty with squatting; the Applicant can sit for one hour and standing is variable. Dr Swan assessed the various impairments as follows under the nominated Schedule 1B Impairment Tables:

(a)   Impaired Lower Limb Function:  10% under Table 4
(b)   Impaired Thoraco Lumbar spinal function:        10% under Table 5.2
(c)   Deafness:   5% under Table 12
(d)   Hypertension:   0% under Table 20   (T15)

Dr Swan considered the Applicant not fit medically for his previous employment (linesman), but fit to undertake light skilled, semi-skilled or lesser skilled occupational categories of work (T15).
In other medical evidence, Mr Gerontakos, an optometrist, concludes in his report dated 5 December 1998, that the Applicant, because of his disparate refractive errors and long term asthenopia, is unsuitable for work with computers or VDU's (T31, p111). This conclusion was affirmed by Dr Wingate (a consultant opthalmologist) in his report dated 28 October 1999 (Exhibit R4).
In other evidence, Mr Moss, the Applicant's supervisor at Integral Energy confirmed the nature and extent of the Applicant's light duties and his limited capacity to carry through these activities because of his disabilities (Exhibit R6, R3).
submissions
The Applicant simply stated that because of his impairments, he had a continuing inability to work; that such a situation existed at the time of his claim and continues to this time. In support of his submission the Applicant relies on the medical evidence relating to his impairments and his work history in his last employment as described by Mr Moss.
The Respondent, while accepting a 25 point combined impairment rating, submits that the Applicant still has a capacity to work in a number of work categories. In this submission the Respondent relies upon the evidence of Dr Swan.
consideration and findings
The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) in part, (2), (3), (4) and (5):
"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;
  …
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.
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.

In further preliminary comment, the Tribunal observes the necessary focussing of its deliberations to material and evidence particular to the period commencing with the date of application and ending three months from the day after lodgement. Subsection 100(3) also permits the Tribunal to assess material outside this period ("operative period") but only in so far as it assists the Tribunal in better understanding the nature and effects of the impairments existing during the operative period.
In turning to the issue of what conditions existed during the operative period, the Tribunal has paid particular attention to the statements of the Applicant, the treating doctor's report of 18 August 1998, the medical assessment report of 11 September and the other medical reports that have been detailed earlier, but have their foundation outside the operative period. After particular consideration the Tribunal finds that the following impairments did exist during the operative period. Further the Tribunal finds that the following clinical features were associated with each of the nominated impairments and in turn makes an assessment of each impairment under the relevant Schedule 1B Impairment Table. Finally the Tribunal nominates the effect each impairment has on the Applicant's work ability:
(a)Thoraco Lumbar Spinal Disorder:
This condition originated in 1991 following an injury at work and, despite surgical intervention in 1993, causes the Applicant low back pain posteriorly which varies in intensity and intermittently radiates to the left hip and down the left leg. The pain and radiation vary in intensity with many physical activities and with standing (variable), sitting (one hour), driving (one to two hours), with climbing stairs and on uneven surfaces. The Applicant has a loss of 50 per cent of normal range of thoraco lumbar sacral spinal movement (Dr Swan). Under Table 5.2 this range of signs and symptomology indicates an impairment rating of 20 points, and the Tribunal so finds. The Tribunal also finds that this impairment did limit the Applicant's ability to move freely and travel a significant distance (greater than one hour); to suffer work endurance problems and be unable to lift, bend or carry objects of any significant weight (greater than ten kilograms).
(b)Lower Limb Disorder:
Commenced in 1995 and was diagnosed at arthroscopy as chrodomalacia patellae. Causes pain behind and above right patella and is associated with wasting of right quadriceps (Dr Swan). Difficulties with climbing, squatting, sitting and intermittent difficulties with walking.

The Tribunal finds that the Applicant has a ten point impairment rating under Table 4 of the Schedule 1B Impairment Tables in view of the clinical findings nominated above and by Dr Swan. The Tribunal further notes the intermittent nature of the walking difficulty, the medication used for pain, the difficulty with stairs and with walking on uneven surfaces and concludes that this would limit the Applicant's work ability to sedentary or semi-sedentary activities of a light nature.

(c)      Hypertension:
This has been present for a few years and is well controlled with medication. The Tribunal finds that the Applicant has a nil points impairment rating under Table 20 for this impairment.
(d)      Binaural Hearing Loss with Tinnitus:
The audiogram taken on 14 March 1998 (T12) indicates a percentage bineural hearing loss in the range of 25 to 34.9 which on assessment gives an impairment rating of five points under Table 12 and the Tribunal so finds.
(e)      Visual Impairment:
The evidence is that the Applicant has multiple minor disorders of both eyes causing some diminution of visual acuity (6/9 6/9) and inability to use computer screens. The Tribunal finds that the Applicant has a zero points impairment rating under Table 13.

In summary the Tribunal finds that the Applicant had particular impairments during the operative period and that the Applicant has a combined impairment rating of 35 points under the various tables of the Schedule 1B Impairment Tables. The Tribunal finds that the Applicant has satisfied subsections 94(1)(a) and (b) of the Act.
In turning to the issue of whether the Applicant has a continuing inability to work the Tribunal has paid particular attention to the written evidence of the Applicant's supervisor at his last place of work, and in particular to the length of endurance the Applicant could undertake, before succumbing to pain (traffic control duties two hours), the nature of work undertaken (light work), computer data entry (short time – headaches). Next the Tribunal considered the opinions of Dr Kamkolkar (no ability to work) and Dr Swan (ability to undertake light, skilled, semi skilled or lesser skilled work). Following this the Tribunal considered the evidence of the Applicant and finally the findings that the Tribunal has made in relation to the combined impairment rating of 35 points and the effects that the various impairments have on the Applicant's work ability.

As a consequence of these considerations the Tribunal finds that the Applicant does have a continuing inability to work, for the nature and severity of his permanent impairments are not consistent with an ability to work 30 hours a week at the time or within the next two years. This is evidenced by his abilities demonstrated at his previous place of work, a place in which he had suffered compensible injury and had his employment maintained on light duties for a number of years. Further the Tribunal notes the inability of the Applicant to use computer or visual display screens. The Tribunal also considers that many if not all of the light, skilled, semi-skilled or lesser skilled work categories suggested as suitable by Dr Swan are inconsistent with the Applicant's particular impairments and their nominated effects on the Applicant's work ability, as well as others being inconsistent with the Applicant's aptitude and/or work experiences.
In particular the Tribunal is concerned that proper weight was not given to the Applicant's back impairment by Dr Swan and that his impairment rating could be said to be inconsistent with the clinical findings, in that it has been found by the Tribunal that the back impairment has a 20 point rating on the clinical findings ennumerated by Dr Swan. The Tribunal notes the findings of the treating doctor in this regard, but would have enjoyed a more detailed reasoning as to how he arrived at his conclusion, a conclusion with which the Tribunal agrees.
The Tribunal further finds that the Applicant does have impairments which by their very nature would prevent him from undertaking educational, vocational or on-the-job training during the next two years. In so finding the Tribunal has acknowledged the nature of the Applicant's impairments, their various symptomologies and their effect on his work ability, particularly his attendance and endurance. Further the Tribunal finds that even if the Applicant were able to undertake a particular training activity, the training, while being beneficial to the Applicant, is unlikely (because of the impairments) to enable the Applicant to do any work within the next two years. The reason for unlikelihood is the same reason as the Applicant had at the time in considering his ability to work. This is further complicated by his difficulty with screen technology and both the consistent and added intermittent symptomology that the Applicant described.
In summary the Tribunal finds that the Applicant does have a continuing inability to work as defined by subsection 94(2) of the Act in that he satisfies both subsections 94(2)(a) and (b)(i) and (ii).
In conclusion the Tribunal finds that the Applicant satisfied all the qualifications necessary for a disability support pension at the operative period.
determination
The Tribunal sets aside the decision under review and in substitution thereof finds that the Applicant qualified for disability support pension at the date of claim.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  5 May 2000
Date of Decision  29 September 2000
Representative for the Applicant  Self-Represented
Representative for the Respondent  Ms A Smith, Departmental Advocate

Actions

Download as PDF Download as Word Document

Citations

Horner and Department of Family and Community Services [2000] AATA 873

Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

0