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

[2010] AATA 954

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 954

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6183

DIVISION		)
Re		Douglas Hutton

Applicant

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

Respondent

DECISION

Tribunal Dr I Alexander, Member

Date29 November 2010  

PlaceSydney  

Decision The application for review is dismissed.  

..............[sgd].............

Dr I Alexander
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether condition is permanent – whether condition has been fully treated and stabilised – whether an impairment rating can be assigned – delays in proceeding – lack of supporting evidence – no reasonable chance of success – the application for review is dismissed.

Administrative Appeals Tribunal Act 1975, s 42B

Social Security Act 1991, s 94 and Schedule 1B

Social Security (Administration Act) 1999, Schedule 2

REASONS FOR DECISION

November 2010 Dr I Alexander, Member    

1.      The decision under review is the decision of Centrelink dated 9 April 2008 to reject Mr Hutton’s claim for disability support pension (DSP).

2. The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the Secretary”) has requested that the Mr Hutton’s application before this Tribunal be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act1975 on the basis that the application has no reasonable chance of success.

BACKGROUND

3.      Mr Hutton lodged a claim for DSP on 2 April 2008 on the basis of impairment because of bilateral cataracts.  He had undergone a successful cataract extraction and lens implantation of the left eye in August 2007 and for various reasons the operation on his right eye was delayed and has still not been done.

4.      Mr Hutton claims that the imbalance in his vision has decreased his general mobility and he is prone to having falls.

5. The claim was rejected by Centrelink on the basis that Mr Hutton did not satisfy the requirements of section 94 of the Social Security Act1991 in that his medical condition of bilateral cataracts was not fully treated and stabilised, and that therefore an impairment rating could not be assigned.

6. On 4 December 2008 the Social Security Appeals Tribunal (SSAT) affirmed the decision of an Authorised Review Officer to reject Mr Hutton’s claim. The SSAT, however, decided that Mr Hutton’s cataracts could be considered as a “permanent” condition for the purposes of the Act but was “unable to assign” an impairment rating from relevant Impairment Tables particularly Table 13 and determined that Mr Hutton had no impairment points.

7.      In order to obtain additional information the SSAT had contacted Mr Hutton’s treating doctor.  The doctor confirmed that Mr Hutton had no medical conditions apart from bilateral cataracts but refused to provide relevant information with regard to Mr Hutton’s visual acuity which was necessary to assess impairment under Table 13.

8.      On 23 December 2008 Mr Hutton lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”).

LEGISLATION

9. Qualification for DSP is determined by Section 94 of the of the Social Security Act 1991 (“the Act”) which, inter alia, states that :

(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;.........

10. Schedule 1B of the Act provides Tables for the assessment of work-related impairment for DSP (the Impairment Tables). 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.”

11.     Qualification and impairment ratings for a DSP claim must be determined as at the date of the claim or within 13 weeks of the lodging of the claim in accordance with Schedule 2 of the Social Security (Administration Act) 1999.

12.     In this application, the “qualifying period” was from 2 April 2008 until 2 February 2008.

ISSUES

13. There is no dispute that Mr Hutton satisfies section 94(1)(a) of the Act.

14. The Secretary, however, contends that, on the evidence before the Tribunal, Mr Hutton cannot satisfy the requirements of s 94(1)(b) on the basis that his medical condition is not permanent within the meaning of the Act and/or that his condition cannot attract an impairment rating of at least 20 points under the Impairment Tables.

15. For the purposes of this proceeding, without deciding, I will assume that Mr Hutton’s medical condition is permanent within the meaning of the Act.

16.     , The determinative issue therefore is whether Mr Hutton‘s medical condition of bilateral cataracts causes sufficient impairment to attract an impairment rating of at least 20 points.

17.     The relevant impairment table is Table 13. Visual Acuity in the Better Eye which clearly describes the allocation of an impairment rating in the context of cataract operations.

MEDICAL EVIDENCE

18.     In a medical certificate dated 13 February 2008 Mr Hutton’s General Practitioner (GP) diagnosed “cataract operation imbalance and falling”.

19.     A medical report dated 31 March 2008 provided by the same GP listed “R eye cataract” as the medical condition with most impact.  In response to the question about details as to how the condition currently affected Mr Hutton’s  ability to function the doctor wrote a single word “Imbalance” and provided no other meaningful description or explanation.

20.     In a letter dated 15 January 2010 from Windsor Optometry, Optometrist Ms D Bradford noted that Mr Hutton had a “Left eye cataract extracted with a good result but still had a cataract in his Right eye”.  Visual acuity in the left eye was reported as 6/7.5.  I note that this document was obtained only after a specific intervention by the Tribunal.

21.     Also, in response to a request by the Tribunal Mr Hutton was examined by Dr M Gibson, Occupational Physician, who provided a report dated 8 July 2010.

22.     In her report Dr Gibson noted that Mr Hutton complained that his ocular imbalance made him unstable with a tendency to fall over and that he had difficulty performing close work.  Nevertheless, Dr Gibson reported that he described having no difficulty generally with walking or climbing stairs. 

23.     On physical examination Dr Gibson noted that Mr Hutton had a normal gait, was able to walk on heels and toes with no obvious imbalance.  On testing for visual acuity she noted that distance vision in the left eye was 6/6.

24.     Dr Gibson stated that as the visual acuity in Mr Hutton’s best eye was 6/6, no impairment points could be allocated using Table 13.  Dr Gibson also noted that there were no other eye conditions which could have been rated using Table 14 or Table 15.

25.     In conclusion Dr Gibson expressed the opinion that Mr Hutton did not satisfy the criteria for DSP as he had insufficient impairment points.

CONSIDERATION

26.     At the time of Mr Hutton’s application for DSP in 2008 the medical evidence supporting his claim was in my view clearly unsatisfactory and of little assistance.

27.     There have been considerable delays in the progress of Mr Hutton’s application for review since his claim for DSP in April 2008.  Despite the fact that this matter has been on foot for about 2 and 1/2 years and for reasons that are not entirely clear, he has not taken the opportunity to provide additional evidence to support his claim.

28.     The recent medical evidence, which was only obtained after intervention by Tribunal on Mr Hutton’s behalf, does not support Mr Hutton’s contention that at the time of his application or during the qualifying period he was entitled to DSP.

29.     The evidence before the Tribunal clearly demonstrates that his current impairment rating for the condition of bilateral cataracts does not reach the required threshold of 20 points.  There is no evidence to satisfy the Tribunal that the circumstances were any different at the time of his application for DSP or during the qualifying period.

30. This means that Mr Hutton cannot satisfy the requirements of s 94(1)(b) and is not entitled to DSP.

DECISION

31. As the evidence before the Tribunal indicates that Mr Hutton’s application has no reasonable chance of success, I have decided to dismiss his application pursuant to s 42B of the Administrative Appeals Tribunal Act.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member.

Signed: ........[sgd].........................................
             Associate

Date of Hearing  11 October 2010
Date of Decision  29 November 2010
Applicant self-represented

Solicitor for the Respondent    Mr B Slattery, Centrelink Advocacy Branch