Kemister and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2000] AATA 476

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/461

GENERAL ADMINISTRATIVE DIVISION       )
           Re      RICHARD HENRY KEMISTER
  Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date14 June 2000
PlaceSydney

Decision The decision under review is affirmed.

…………………………..
S M Bullock
Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – cancellation physical impairment continuing inability to work.

Social Security Act 1991 - s94

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Haouchar and Secretary, Department of Social Security (1993) 32 ALD 183
Secretary, Department of Social Security v Pusnjak [1999] FCA 994.

REASONS FOR DECISION

Ms S M Bullock, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Richard Henry Kemister ("the Applicant") of a decision of the Social Security Appeals Tribunal ("SSAT") made on 24 March 1998 (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services made on 19 February 1998 (T25). The original decision to cancel Mr Kemister's Disability Support Pension was made on 28 August 1997 (T10).
Mr Kemister was granted a stay of the SSAT's decision by the Tribunal on 15 July 1998 and accordingly Mr Kemister has been in receipt of Disability Support Pension.
Mr Kemister attended a hearing before the Tribunal in Sydney and provided oral evidence. He was self-represented. Mr Kemister was accompanied by his former wife, Ms Diane Reilly, who also provided brief evidence. The Secretary, Department of Family and Community Services ("the Respondent") was represented by Ms H Schuster, departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents T1-T25") and the following exhibits:
Exhibit No A1 A2 A3 A4 A5 A6 A7 A8 A9 A10 R1 Description Sleep Study Report from Dr R Grunstein, Camperdown Sleep Disorders Centre Report by Dr R Smith, Consultant Cardiologist Letter "To Whom It May Concern" from Ms A Turk, Naturopath, at the Aboriginal Medical Service Co-Operative Ltd, Redfern CT Scan Report from Dr R A Murray-Nobbs, Sydney Imaging Group Medical Certificate from Dr K T Hoang Letter "To Whom It May Concern" from Sister C Rodger, Australian Health Care Centre, Kirrawee Medical Certificate from Dr K T Hoang Treating Doctor's Report by Dr K T Hoang Report by Dr M Baz, Occupational Physician Letter "To Whom It May Concern" from dr K T Hoang Respondent's Statement of Facts and Contentions Date 18 April 1995 2 February 1999 11 February 1999 15 February 1999 19 February 1999 22 February 1999 28 June 1999 9 September 1999 12 April 1999 13 March 2000 21 September 1999

LESISLATION

The legislation under which this matter is to be determined is the Social Security Act 1991 ("the Act") and specifically section 94 which deals with the Disability Support Pension.

Section 94 as it stood at the time of the original decision is as follows:
"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% or more under the Impairment Tables; and
(c)   because of the impairment the person has a continuing inability to work; and
(d)   the person has turned 16; and
(e)   the person either:
(i)is an Australian resident at the time when the person first satisfied 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 satisfied 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.
…
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 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   (5)   In this section:
'educational or vocational 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.
'on-the-job training' does not include a program designed specifically for people
with physical, intellectual or psychiatric impairments."

ISSUES

The issues to be determined in this matter are as follows:
(1)whether or not the decision to cancel Disability Support Pension as at 28 August 1997 was correct; and specifically
(2)does Mr Kemister have a physical, intellectual or psychiatric impairment; and if so
(3)is Mr Kemister's impairment 20% or more under the tables for assessment of impairment for disability support pension ("Impairment Tables"); and if so
(4)does Mr Kemister's impairment cause him to have a continuing inability to work for at least 30 hours per week within the next two years or prevent him from undertaking educational, vocational training or on-the-job training during the next two years?

BACKGROUND

The information contained in this section provides a background to the matters under consideration and the facts contained here are not in dispute:

Mr Kemister was born on 11 October 1950.
On 19 June 1991, Mr Kemister lodged a claim for a Disability Support Pension in relation to his condition described as "heart surgery". On 10 July 1991, Dr Ghannoum provided a Treating Doctor's Report in relation to Mr Kemister's heart condition, diagnosed by Dr Ghannoum as "coronary angioplasty" in April 1990. Dr Ghannoum reported that Mr Kemister, at that point was "unfit for duty at present" (T5).
On 26 June 1997, Mr Kemister completed a "Medical and Other Information" form detailing his having had three heart attacks, a by-pass operation in 1989, angioplasty treatment and sleep disorders (T6).
On 16 August 1997, Mr Kemister was examined by Dr N McCullum, Commonwealth Medical Officer with the Australian Government Health Service, who assigned a 15 per cent impairment rating for "ischaemic heart disease" but found Mr Kemister fit for light duties with no physical exertion (T9).
On 28 August 1997, a delegate of the Department determined that Mr Kemister's Disability Support Pension should be cancelled and he was advised in writing (T10, T11, T12).
On 10 September 1997, Mr Kemister's treating doctor at that time, Dr P Coorey, prepared a report in relation to Mr Kemister's heart condition and opined that Mr Kemister remained unfit for work of any kind (T14).
On 5 November 1997, Mr Kemister requested a review by an ARO (T21).
On 16 February 1998, an ARO affirmed the delegate's decision to cancel Mr Kemister's Disability Support Pension and Mr Kemister was informed in writing (T23).
On 18 February 1998, Mr Kemister lodged an Application for Review to the SSAT stating:
"I am still in the process of revealing why I am still getting chest pains and exhausting/conditions. I am in the process of having testing done for my chest. I have also still have to return (sic) all the findings to my doctor & specialist." (T24)
On 24 March 1998, the SSAT affirmed the decision under review but increased the impairment rating to 20 per cent, commenting that a 4-5 METS rating from Table 1 of the Impairment Table contained within Schedule 1B to the Act would be more appropriate as the Mr Kemister could only swim one lap before becoming breathless and experiencing pain (T2).
On 14 April 1998, Mr Kemister made an application for review to the Tribunal of the SSAT's decision stating that:
"My ongoing medical treatment & physical conditions – the findings of the S.S.A.T. are incorrect.
My physical and mental ability to cope.
My first examination by the medical officer from Health Services Aust.
My 15% impairment rating from the Impairment Tables." (T1)

APPLICANT'S EVIDENCE

Mr Kemister told the Tribunal he left school at age 14 years when he was in year eight. He initially obtained work for approximately six months as a storeman and packer. Mr Kemister then worked variously as a driver for five years, working on a loading dock and undertaking sales and delivery work for a surf shop in Queensland. He had also worked with the Queensland Electricity Board. Mr Kemister last worked in late 1989 as a dockhand. He stated that he was working at the time he had the first of three heart attacks which occurred in, he thought, November or December of 1989. Subsequently, Mr Kemister reported he had heart attacks in January and February 1990.
Mr Kemister was granted Disability Support Pension for his heart condition in 1992 (T2).
In 1994, Mr Kemister stated that he was involved in a motor vehicle accident in which he sustained injuries to his neck.
Mr Kemister explained to the Tribunal that he has had treatment for his neck, on and off, since 1995 and referred the Tribunal to a letter of 11 February 1999 by a Naturopath, Ms A Turk, who reported that since a fall in 1995, she had been treating Mr Kemister for headache and tingling down his left arm and into his forefinger. Although the note from Ms Turk did not specifically refer to Mr Kemister's neck condition, Mr Kemister stated that the treatment provided by Ms Turk was for his neck and the symptoms she described were neck related symptoms. Ms Turk treated Mr Kemister 18 times for this condition in 1995, on 11 occasions in 1996, twice in 1997, once in 1998 and twice in 1999 (Exhibit A3).
Mr Kemister stated there was a reduction in treatment from Ms Turk in 1997 because that period included him moving to the Sutherland area. Referring to a note of 22 February 1999, from Sister C Rodger of the Australian Health Care Centre (Exhibit A6), Mr Kemister noted that Sister Rodger recorded Mr Kemister having received "interferential treatment" and anti-inflammatory medication on 7 September 1994. Mr Kemister noted Sister Rodger had recorded that he received interferential treatment on 16 occasions in 1994 and three occasions in 1998. Mr Kemister explained to the Tribunal that interferential treatment and the anti-inflammatory medication was prescribed for his neck condition.
Mr Kemister asked the Tribunal to consider that not only did he have a heart condition, but that he also had a neck condition which caused him significant pain and restriction of the range of movement of the cervical area in addition to pain and tingling, particularly in his left arm. This neck condition was not new, Mr Kemister told the Tribunal, as was evidenced by the reports of Sister Rodger and Ms A Turk. The difficulty for Mr Kemister, he told the Tribunal, is that he is still anxious that the symptoms which his doctors seem to think are related to cervical osteoarthritis, may also be related to his heart condition.
In relation to Mr Kemister's ischaemic heart disease, he told the Tribunal that he becomes breathless on exertion. He also experiences angina from time to time, having experienced it once during the past year. Mr Kemister has Anginine tablets for use when he experiences angina. Mr Kemister told the Tribunal that he can walk approximately two kilometres on the flat but then must have a rest. He walks half a kilometre to the shops twice a week but is unable to carry heavy parcels.
In summer, Mr Kemister may swim to cool himself down. He is only able to undertake one lap at a time and then he must get out of the pool and walk. Mr Kemister stated that he can undertake two laps, walking in the pool, a lap being 50 metres. During summer, Mr Kemister might undertake this activity once or twice a week.
Mr Kemister does not do his own housework, he told the Tribunal. Such household duties are undertaken by his ex-wife, Ms D Reilly, or his daughter. In this regard, Ms Reilly undertakes Mr Kemister's washing, cleaning and odd jobs about the house. He lives in an Housing Commission apartment and is not required to mow any lawns. Mr Kemister does have a balcony on which he has some pot plants which he is able to tend from time to time.
Mr Kemister does not drive a car because he is afraid he could have a heart attack and cause injury not only to himself but to others. He will visit people occasionally or is visited by family and/or friends. Mr Kemister stated that he is unable to lift weights and any exertion causes him to become breathless and experience pain in his chest and arms.
Dr R Smith, Consultant Cardiologist, has been Mr Kemister's treating cardiologist since 16 October 1997. Mr Kemister told the Tribunal that he last saw Dr Smith in early 1999 but believes that his General Practitioner, Dr K T Hoang, will soon be referring him back to Dr Smith for follow-up. In a Treating Doctor's Report of 19 November 1997, Dr Smith referred to Mr Kemister's condition as "Ischaemic Heart Disease" and noted that Mr Kemister had experienced angina in 1989, coronary by-pass grafting in 1990 and recurrent angina during 1997. As at November 1997, Dr Smith opined that Mr Kemister was capable of returning to any type of full or part-time work, apart from his previous labouring type job, and further, that Mr Kemister could benefit from vocational training or rehabilitation relating to semi-sedentary work or office work (T19).
In his most recent report, Dr Smith noted, on 2 February 1999, that:
"I think it is there fore unlikely that he has significant progressive coronary artery disease, his symptoms are more consistent with a nerve root entrapment related to his previous cervical and or thoracic spine problems and his Exercise test remains within normal limits. His cholesterol is too high and must be treated. I have hence reassured him, I have asked him to see you so that x-rays can be arranged with his cervical and thoracic spine and further treatment can be advised either through conventional medicine or perhaps seeking the help of his chiropractor and or acupuncture. …
I have also restarted Pravachol 40 mg and I think he should stay on this for the foreseeable long term future, I would be grateful if you would check his lipids response in about a months time and I will leave it up to you as to when I should next review his progress." (Exhibit A2)

Mr Kemister continues to take the medication Capoten, Cardizem and half an Aspirin daily, he told the Tribunal.
Mr Kemister was questioned about his neck problems. He told the Tribunal that he had neck pain symptoms commencing in about 1994 and he has received a variety of treatments as detailed in Exhibits A2 and A3 which describe his treatment of interferential therapy and inflammatory medication provided through the doctors at the Australian Health Care Centre and also massage and chiropractic treatment from Ms A Turk, Naturopath at the Aboriginal Medical Service Co-Operative Ltd.
Mr Kemister agreed that he had not made any mention of neck problems to either the Medical Adviser at the Australian Government Health Service, nor to Dr Smith or the SSAT. Mr Kemister stated that at the time of the review of his Disability Support Pension in 1997, he thought that he need only mention his heart condition. He stated that he now realised that he was "naive" and had made "a silly mistake."
In relation to the examination conducted by Dr M McCullum, Medical Officer of Australian Government Health Service, Mr Kemister stated that he was only given the opportunity to provide a brief history and the examination was extremely short. He did not mention any chest pain or neck pain to Dr McCullum.
Mr Kemister acknowledged that Dr P Coorey, Mr Kemister's General Practitioner in September 1997, did not mention any neck condition but only Mr Kemister's cardiac by-pass surgery in 1990 and his recurrent chest pains (T14).
Mr Kemister was adamant that he has been suffering problems with his neck which included pain, restriction of movement and aches and pains and including tingling down his arms, particularly his left arm. Mr Kemister told the Tribunal he was "at a crossroad with all his health conditions and their treatment". Recently, Dr Hoang, Mr Kemister's current General Practioner, has been treating his neck with the interferential treatment and he also still attends Ms Turk who provides him with massage and chiropractic technique. Mr Kemister stated that he had attended Ms Turk's rooms on the Monday before the hearing in order to have a treatment which would then allow him to attend the hearing and sit through it with lessened pain than otherwise would have been the case without treatment. It is difficult for Mr Kemister to attend Dr Hoang, however, because Mr Kemister does not drive and, having caught a train to the closest station, Mr Kemister then has approximately a three kilometre walk to get to the surgery.
Dr Hoang has explained to Mr Kemister that he has osteoarthritis of the neck and a problem in the discs and his spine. Mr Kemister referred the Tribunal to a report by Dr R A Murray-Nobbs who, following a CT scan of the cervical spine, reported that Mr Kemister has degenerative changes with foraminal encroachment by degeneration at C5/6 on the right and C6/7 on the left. There is also an asymmetrical bulging of the annulus of the discs at these two levels which, however, is unlikely to be of neurological significance (Exhibit A4).
It is Mr Kemister's view that his neck problem is just as bad and debilitating as his heart condition.
Mr Kemister stated that his neck condition prevents him lifting heavy objects. He cannot move his neck from side to side and he is virtually constantly experiencing pain and aching. Mr Kemister stated that his neck condition affects many aspects of his life, from sleeping at night to undertaking daily activities. Mr Kemister is unable to carry shopping, he is unable to concentrate because of the pain and he is always tired. There is pain down his arm, mostly on the left, and a tingling of his fingers. Mr Kemister reiterated that while he considers his heart condition is separate, he still worries that the source of the symptoms considered to be from his neck may in fact emanate from his heart. Mr Kemister's constant fear is that he may have a stroke.
Dr Hoang, in a medical certificate of 19 February 1999, diagnosed the condition of osteoarthritis of the cervical spine and indicated that because of this condition, Mr Kemister would be unfit for work from 19 February 1999 to 19 May 1999 inclusive (Exhibit A5). On 28 June 1999, Dr Hoang further reported, in a medical certificate, for the conditions of osteoarthritis cervical spine and ischaemic heart disease, that Mr Kemister was unable to work from 28 June 1999 to 28 September 1999 inclusive (Exhibit A7). Dr Hoang indicated that Mr Kemister had reduced capacity to lift heavy objects, to sit for long periods and to concentrate because of those conditions. Dr Hoang concluded it would be more than two years before Mr Kemister was able to return to work/study for at least eight hours a week.

In relation to both ischaemic heart disease and osteoarthritis of the cervical spine, Dr Hoang reported, in a Treating Doctor's Report of 9 September 1999, that in relation to those conditions, they were stable and constant while the heart condition was being treated by medication and there were still symptoms which were intermittent. (Exhibit A8).
On 13 March 2000, Dr Hoang advised that Mr Kemister was receiving physiotherapy for neck pain for the last few weeks and would need further treatment for a further few weeks (Exhibit A10).
Mr Kemister also has a mild sleep apnoea, as reported on 18 April 1995 by Dr R Grunstein of the Camperdown Sleep Disorders Centre (Exhibit A1). Mr Kemister stated that he has tried a device called "C pap" machine but it did not help him and it was very expensive. Currently, Mr Kemister is not receiving any treatment for this condition. He has had the problem, particularly with snoring, all his life, he stated. On occasions, Mr Kemister wakes himself up because he has stopped breathing, he reported. He often doses off during the day and is very tired in the morning.
Mr Kemister reported that his blood pressure has risen, despite his taking medication and that he had been advised that his cholesterol level has also increased. There have been occasions in the past when Mr Kemister was prescribed Valium for his anxiety but he found that this medication did not agree with him and he did not tend to take it very often.
Mr Kemister concluded it was "silly" of him not to mention his neck condition to the Health Services Australia Medical Adviser, to his treating doctors, or to the SSAT. His failure to report this condition, was done not out of any wish to conceal the condition, but because he was naive. Mr Kemister concluded that he had not mentioned the neck condition because he believed that his ischaemic heart disease condition was of sufficient severity for him to obtain a Disability Support Pension. The fact that Mr Kemister did not mention his neck problems did not mean that they did not exist, Mr Kemister stated, and, in fact, he had had neck pain and restricted range of movement since 1994. This was attested to by Dr Hoang, Sister Rodger, and, more recently, Dr Baz, Occupational Physician.
EVIDENCE OF MS D REILLY
Ms Reilly stated that she was Mr Kemister's former wife, having divorced in 1980. Ms Reilly explained that she had regular contact with Mr Kemister as she and her daughter attended to Mr Kemister's household tasks including vacuuming, washing, changing bed clothes and shopping. Although this contact was not daily, Ms Reilly provided a high level of support for Mr Kemister without which she doubted whether he would be able to cope. Mr Kemister had no transport, he could not carry shopping bags and needed help with "all his basic things".
OTHER MEDICAL EVIDENCE
Dr M Baz – Occupational Physician
Dr Baz prepared a report on 12 April 1989 in relation to Mr Kemister (Exhibit A9). Dr Baz concluded that Mr Kemister's combined impairment rating was 23 points which is as follows:

Disability                  Table            Rating
Ischaemic heart disease                1.1                  15
Hypertension           25                    0
Cervical spine  5.1                   5
Upper limb                  3                  0
Neck and upper limb pain               6                  5
Combined impairment rating           23

In relation to Mr Kemister's fitness for work, Dr Baz opined that, as a result of all of his impairments:
"…Mr Kemister is limited to light activity from which he can take breaks. Heavy manual labour can be expected to cause fatigue, chest, neck and arm pain. Repetitive work above head height, the repeated use of the upper limbs, particularly in the left, and tasks involving lifting, bending and carrying, pushing or pulling, are likely to aggravate the cervical spine condition as well as possibly cause cardiorespiratory symptoms.
… However alternative predominantly clerical work in the sales or retail industry, in a clerical capacity, or as a car park attendant or ticket collector would be within his physical capability.
…
In my opinion the considerable difficulty he now experiences obtaining any regular employment is not predominantly due to his impairments. Although in the absence of his impairments, there would be a broader range of occupations available to him it is unlikely, given his history, that he would undertake them for more than 30 hours weekly.
…
I do not consider that these impairments prevent him from doing other work and, in my opinion, they would not prevent him from undertaking on-the-job or formal training, and such training is likely to enhance his job prospects." (Exhibit A9)

Dr K T Hoang – General Practitioner

In a Treating Doctor's Report of 9 September 1999, Dr Hoang reported that Mr Kemister suffered from two conditions, namely osteoarthritis of the cervical spine and ischaemic heart disease. The osteoarthritis of the cervical spine had the clinical feature of chronic neck pain while the clinical features of the ischaemic heart disease included chest pain and reduced physical fitness. Dr Hoang reported that Mr Kemister has had physiotherapy and medication in the past for his neck problems and this treatment was still ongoing and, in relation to his heart condition, he continues to take medication and has previously had surgery for a coronary by-pass graft in 1990. Dr Hoang opined that Mr Kemister would be able to return to part or full-time work, not his previous job, but other work within the next 12 to 24 months but that he would not benefit from vocational training or rehabilitation (Exhibit A8).
SUBMISSIONS
Mr Kemister told the Tribunal that he could not work because of the combination of the disabilities from his heart and neck conditions and because of his sleep apnoea. Mr Kemister submitted that he had been told that the osteoarthritis and the ischaemic heart disease were two different conditions but believed his cervical osteoarthritis is still under investigation by Dr Hoang. Mr Kemister submitted that he continues to be very anxious that the pain that is diagnosed as emanating from his neck may in fact be symptoms of his heart. He is afraid of either another heart attack or a stroke.
Mr Kemister acknowledged that he had never made any claim for Disability Support Pension for his neck condition and that he had been remiss in not doing so. That he had not told the Medical Adviser with the Australian Government Health Service, his treating cardiologist or the SSAT of this neck condition was a matter that he deeply regretted. Consideration of the implication of his neck condition on his activities of daily living and his ability to work should be taken into consideration, Mr Kemister submitted. Particularly as the neck condition had been present since 1994 as attested to by the reports from Ms Turk, Sister Rodger, Dr Hoang and by Dr Baz.
The reason that there was little treatment for his neck in 1997 related to Mr Kemister moving his residence, and therefore not being able to physically get to treatment. He had also learned to live with and manage the problem, including treating himself. The lack of treatment during 1997 did not, Mr Kemister submitted, indicate that the problem had reduced or become quiescent.
Mr Kemister asked the Tribunal to consider his poor physical health from the combination of his neck and heart problems. It is iimportant for the Tribunal to understand that because of his inability to lift or carry anything, to concentrate or cope with the pain in his chest and neck with associated tingling, that these symptoms in combination caused his inability to work even in sedentary light work or to train for such light clerical and sedentary work.
Ms Schuster's submissions related primarily to subsection 94(1)(c) of the Act in that she contended, on behalf of the Respondent, that Mr Kemister did not have a continuing inability to work.
In relation to the issue of the actual impairment rating, Ms Schuster indicated that she was not strongly advocating that the rating of 20 per cent arrived at by the SSAT should be overturned but noted that Dr Baz, in her combined impairment rating, assessed Mr Kemister's heart condition at 15 per cent and not 20 as had done the SSAT.
Ms Schuster referred the Tribunal to Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 as authority for the proposition that the Tribunal should confine itself to considering eligibility as at the date of cancellation of the Disability Support Pension. This proposition was used with approval in Re Haouchar and Secretary, Department of Social Security (1993) 32 ALD 183. Accordingly, Ms Schuster submitted that the Tribunal could only consider Mr Kemister and his disability as it was on 28 August 1997, the date his Disability Support Pension was cancelled. At that time, the claimed disability was ischaemic heart disease and the issue of any neck condition or diagnosis of osteoarthritis of the cervical spine had not been raised. In fact, it was not until 19 February 1999 that Dr Hoang, in a medical certificate, had diagnosed osteoarthritis of the cervical spine and that Mr Kemister would be unfit for work from 19 February 1999 to 19 May 1999 inclusive (Exhibit A5). Accordingly, as at the date of cancellation, Ms Schuster submitted that the Tribunal is not able to consider the condition of osteoarthritis of the cervical spine but only Mr Kemister's ischaemic heart disease and whether this condition would satisfy the criteria under section 94 of the Act for eligibility for a Disability Support Pension.
Referring to the medical opinion of Dr McCullum (T9), Medical Adviser with Health Services Australia, and Dr R Smith's Treating Doctor's Report of 19 November 1997 (T19), both doctors indicated that Mr Kemister was unable to do his usual work, but could undertake semi-sedentary or clerical work.
Later, Dr Hoang, when providing a treating Doctor's report of 9 September 1999 for osteoarthritis of the cervical spine and heart condition, indicated that Mr Kemister would be able to recommence work within one to two years in either a full or a part-time capacity (Exhibit A8). Dr Baz, in February 1999, also when considering both neck and heart conditions, considered that Mr Kemister could do other work such as clerical work and that he could also retrain (Exhibit A9).
Ms Schuster submitted that the Respondent prefers the opinions provided by Cardiologist, Dr Smith, and Occupational Physician, Dr Baz, as to Mr Kemister's ability to undertake work in both 1997 and currently.
In relation to hypertension and sleep apnoea, the Respondent, in written submissions, suggested a nil rating for both conditions.
Ms Schuster also submitted that the Tribunal should note that the treatment for Mr Kemister's neck condition in 1997 was at its minimum compared to treatment particularly earlier than 1997 and later in 1998 and 1999. This was evidence, Ms Schuster submitted, that in 1997 the condition, if it was present, was of minimal impact on Mr Kemister's ability to work.
Ms Schuster acknowledged the very real fear Mr Kemister experiences in relation to his anxiety about having another heart attack or a stroke. Ms Schuster submitted, however, that this did not mean that the anxiety should be taken into account when considering whether or not Mr Kemister had a continuing inability to work because of his impairment alone. Referring to Secretary, Department of Social Security v Pusnjak (1999) FCA 994 in which the court concluded that the Tribunal in that case had not made any error of law in taking into account Mr Pusnjak's actual work skills and experience and capacity to be retrained for any work that he could therefore do, Ms Schuster submitted that the facts in Mr Kemister's case could be distinguished. Referring to Mr Kemister's evidence, Ms Schuster submitted that Mr Kemister had heart and neck problems which, in combination, caused him disability but also submitted that there was insufficient evidence to indicate that the neck problem, if it existed in 1997, could be considered as impacting on Mr Kemister's inability to work.
In conclusion, Ms Schuster submitted that the preponderance of medical evidence indicated that in 1997 Mr Kemister did not have a continuing inability to work in that it was considered, particularly by Mr Kemister's treating Cardiologist, that he could return to light sedentary work or clerical work. Thus, Mr Kemister did not satisfy subsection 94(2) of the Act and as such is not qualified for a Disability Support Pension. Therefore, the decision under review should be affirmed.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the law and relevant case law.
The Tribunal found Mr Kemister and Ms Reilly to be cooperative and considered them to be truthful witnesses.
The Tribunal finds that in deciding this matter, the Tribunal must consider Mr Kemister's circumstances as they were at the date of cancellation of his Disability Support Pension, that is, 28 August 1997. The Tribunal has reached this decision taking into account Freeman (supra) and Re Haouchar (supra).
At the time of the decision to cancel Mr Kemister's Disability Support Pension, the Tribunal finds that the only condition under consideration and in fact claimed, was ischaemic heart disease. Mr Kemister had not claimed at that time nor since, any condition relating to his neck which most recently, in February 1999, was diagnosed by Dr Hoang as osteoarthritis of the cervical spine. Having so found, this is not to say that in 1997 Mr Kemister did not have a neck condition. The Tribunal accepts that Mr Kemister was receiving treatment for the condition as supported by reports from Ms Turk, Sister Rodger and confirmed in Dr Baz's report. The issue is, however, that in August 1997 Mr Kemister had not discussed this neck condition with the Australian Government Health Service's Medical Officer, nor was the matter raised by Dr Smith in his Treating Doctor's Report, also in 1997. At that point in time, therefore, the Tribunal considers that despite the existence of a neck problem which has subsequently been brought to attention, at the time of the decision of cancellation of the Disability Support Pension, the neck condition had not been raised, and therefore had not been assessed or been investigated.
Turning to consideration of section 94 of the Act, the Tribunal finds that Mr Kemister's circumstances satisfy subsection 94(1)(a) of the Act in that he suffers from a physical impairment.
In relation to subsection 94(1)(b) of the Act, the Tribunal considers that the impairment rating from Table 1 of the Impairment Tables contained in Schedule 1B to the Act, as it was then, is 20 per cent. This is considered the appropriate rating when reference is made to Mr Kemister's evidence concerning his exertion. He states that he became breathless on exertion and this is supported by the evidence of his doctors. Further, from his evidence to the Tribunal, it is noted that Mr Kemister can only swim one lap and then must get out and walk to the end of the pool. He is able to do two laps walking in the water in a type of hydrotherapy session, but again must cease because of the fatigue he experiences on exertion. Referring to Table 1.2, the Tribunal considers that the appropriate METS rating is that of 3-4 and this therefore equates to a 20 per cent rating under the Impairment Tables.
For the reasons given above, the Tribunal does not rate any other condition as at the relevant time. Therefore, Mr Kemister satisfies subsection 94(1)(b) of the Act.
The next criteria which must be satisfied is whether or not Mr Kemister has a continuing inability to work as provided in subsection 94(1(c) of the Act.
There is clear medical evidence from Mr Kemister's treating Cardiologist, Dr Smith, that Mr Kemister is not capable of his usual work which requires heavy labouring or manual work but that he was considered to be able to undertake semi-sedentary work or office work. Dr Smith's opinion is supported by that of Dr McCullum.
The Tribunal notes that even when osteoarthritis of the cervical spine is combined with Mr Kemister's ischaemic heart disease, medical opinion from Dr Baz is that Mr Kemister would still be able to undertake light work and be retrained. Mr Kemister's treating General Practitioner, Dr Hoang, also, when considering both ischaemic heart disease and osteoarthritis of the cervical spine, opined that Mr Kemister would be able to undertake part or full-time work within the next 12 to 24 months.
The Tribunal finds that the weight of medical evidence is that Mr Kemister can undertake light sedentary work and that he can be re-trained. While the Tribunal notes Dr Coorey's report of 10 September 1997 that Mr Kemister could not work, the later report provided by Dr Smith in November 1997, indicated that he believed his patient could work. The Tribunal prefers the opinion of the treating Cardiologist.
The Tribunal determines therefore, on all the available evidence, that Mr Kemister did not have a continuing inability to work as at the date of cancellation of his Disability Support Pension and that, in fact, he was capable of undertaking light sedentary or clerical work and that he could be retrained. Accordingly, Mr Kemister does not satisfy subsection 94(1)(c) of the Act and therefore section 94 as a whole is not satisfied. In such circumstances, the Tribunal finds that Mr Kemister was not eligible for a Disability Support Pension as at 28 August 1997 and the decision therefore to cancel the Disability Support Pension was correct at that time.
Accordingly, under section 43 of the Administrative Appeals Tribunal Act 1975, for all of the reasons set out above, the Tribunal affirms the decision under review.
The Tribunal notes that there is firm medical evidence that Mr Kemister does have a diagnosable and long-term condition of osteoarthritis of the cervical spine in addition to his heart condition. Mr Kemister has never made any claim for Disability Support Pension for his osteoarthritis. The Tribunal has no jurisdiction to make any determination in relation to this condition and it may be that Mr Kemister might consider it appropriate to apply for Disability Support Pension including this condition as one which impacts upon his life and his ability to work.
The Tribunal affirms the decision under review.

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of:
Ms S M Bullock, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  22 March 2000
Date of Decision  14 June 2000
Representative for the Applicant          Self-represented
Representative for the Respondent     Ms H Schuster, Departmental Advocate

[2000] AATA 476

14 June 2000

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991 - s94

Disability Support Pension

Unconscionable Conduct

Limitation Periods