King and Department of Family and Community Services
[2000] AATA 377
•15 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 377
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/448
GENERAL ADMINISTRATIVE DIVISION )
Re BRIAN DOUGLAS KING
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date15 May 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review. This means the decision to cancel Mr. King's Disability Support Pension on 5 January 1999 was the correct decision.
...............(Signed)...............................
Dr E K Christie
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – assessment of impairment
Social Security Act 1991: ss94(1) 2), 100(3)
Freeman v Secretary, Department of Social Security(1987-1988) 15 ALD 671; (1988) 19 FCR 341; (1988) 87 ALR 506; (1988) 9 AAR 255
REASONS FOR DECISION
15 May 2000 Dr E K Christie, Member
This is an application by Brian Douglas King to review a decision of the Social Security Appeals Tribunal (the "SSAT") made on 8 April 1999 to affirm the decision of an authorised review officer of the Commonwealth Services Delivery Agency, made on 16 February 1999, to cancel Mr. King's Disability Support Pension ("DSP").
In reaching its decision, the SSAT concluded that Mr. King's medical conditions did not attract a rating of 20 points under the Impairment Tables and so Mr. King did not satisfy the provisions of s.94(1)(b) of the Social Security Act 1991 ("the Act"). As a consequence, Mr. King did not qualify for DSP.
At the hearing Mr. King represented himself and gave evidence by telephone. Mr. King called his treating doctor, Dr. Ong, to give evidence on his behalf. The respondent was represented by Ms. J. Dwyer, a Departmental Advocate.
At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1).
ISSUES BEFORE THE TRIBUNALThe only issue for the Tribunal to decide was whether Mr. King was entitled to continue to receive DSP. That is, whether Mr. King had an impairment rating of 20 points or more from permanent medical conditions at the time his DSP was cancelled (5 January 1999). If this were the case, the next question to be decided was whether Mr. King had a continuing inability to work.
FACTSThe general facts were not in dispute and may be stated briefly. Mr. King was aged 53 years at the time of the cancellation of DSP. He had left school aged 13 at the start of Grade 8. He had first been granted DSP on 20 January 1997. Mr. King agreed with the following findings of fact made by the SSAT (T2 folio 9):-
"(i) Mr. King was in receipt of DSP and it was cancelled on 5 January 1999.
(ii)Mr. King has a number of permanent medical conditions: osteoarthritis affecting left and right knees and left ankle, pain in the left and right shoulders, tinnitus and hearing loss in the left ear.
(iii)These conditions impact as follows: Mr. King can use his dominant upper limb and there is loss of some strength in his left (non-dominant) upper limb which cause mild interference with manual handling.
(iv)Mr. King's osteoarthroses of the ankle and both knees causes demonstrable loss of strength and mobility and moderate interference with squatting."
CONTENTIONS AND SUBMISSIONS OF THE PARTIES
Mr. King relied on Dr. Ong's oral evidence to the Tribunal as the basis for his meeting the 20 points impairment requirement. Dr. Ong's evidence could be summarised as follows:
X-rays in April 1999 revealed osteoarthritis of both the right and left knee of Mr. King;
That a consultation with Dr. Sugars in July 1999 further indicated osteoarthritis in both knees; and
Further x-rays on 21 March 2000 confirmed arthritic changes in Mr. King's lumbar-sacral spine. There was also evidence of osteophytes and disc narrowing.
Mr. King stated that his usual occupation was a driller. He suffered pain from walking after only 15-20 minutes. Painkillers were then required, as well as ice- packs to reduce left knee and ankle swellings.
Mr. King said that whilst he could drive, he needed to stop and move around after about 30 minutes driving. There were problems with his kneecaps associated with calcium deposits. These problems made squatting difficult.
Mr. King stated that if he had surgery to his kneecaps, and assuming that surgery was successful, he believed that he had a 90% chance of working again. However, he had been given some medical advice that a satisfactory outcome to surgery was uncertain. He had also been advised, as an outpatient of Royal Brisbane Hospital some two to three weeks earlier, that there was a surgical waiting list of one to two years.
Mr. King contested the rigour of the two Health Services Australia ("HSA") doctors who he had consulted in relation to his DSP application. Whilst the treating doctor, Dr. Schmidt's, examination (T7, 4 March 1997) was thorough and had taken 30 to 45 minutes, the same could not be said for Dr. Bonert (T13, 5 January 1999); Dr. Bonert had only taken eight to ten minutes for his examination and, as well, had mistaken the wrong ankle associated with Mr. King's medical problem.
In response to questions asked by Ms. J. Dwyer, the Departmental Advocate, Mr. King said that:
he worked in Brunei on a seven month contract until the end of 1998 as a 'drill supervisor'. This job was as a foreman and involved no labouring work. Mr. King acknowledged that he could have continued work in a supervisory role;
he was registered with Drake and National Employment but there were no employment opportunities either in Australia, or overseas, as a driller;
he had not tried to do any work other than drilling; and
Drake had made no suggestion of training to him.
In terms of his impairment rating, Ms. Dwyer submitted that:
there was no further evidence before the Tribunal apart from the hearing function test (T14, 5 January 1999) in which to assess Hearing Function under Table 12;
the assessment of impairment of Upper Limb Function (Table 3) of 'nil' points was correct, as the criteria in the Table were identical with the SSAT finding of fact (paragraph 6) and acknowledged by Mr. King in his oral evidence before the Tribunal;
there was no evidence before the Tribunal to indicate the impairment rating for upper limb function should increase to five points;
in relation to Table 4 (Function of the Lower Limbs), there was no evidence before the Tribunal that Mr. King suffered 'major' rather than 'moderate' interference to walking and squatting. In addition, there was no evidence to suggest that Mr. King was unable to walk or stand or that he could be independently mobile using a self-propelled wheelchair. As a result, ten points – rather than 20 points, was the appropriate impairment rating; and
the HSA assessment of impairment (T13) was based on the medical conditions of Mr. King that had been specified by his treating doctor, Dr. Ong (T5, T12, T20).
based on the assessment of impairment using Tables 3, 4 and 12, Mr. King had only a total impairment rating of only ten points and so did not qualify for DSP.
In terms of Mr. King's "ability to work", Ms. Dwyer contended that:
Dr. Bonert's conclusion (T13 Folio 85) was correct:
"He [Mr King] is fit for full time semi sedentary work eg garage attendant, car park attendant"
up to October 1998, Mr King had worked as a drill supervisor and would have continued working if the opportunity was available;
Mr King could work in a factory if it was possible for him to move around or where there was little effort required "reaching with his shoulders"; and
Mr. King had an ability to work and so did not meet the statutory test for DSP of a "continuing inability to work".
CONSIDERATION OF THE ISSUES
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 Act.
Section 94 of the Act has provisions for 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 …..
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."
Section 100(3) of the Act is relevant as it specifies the period when a person first becomes qualified for DSP as well as the boundaries of the time period for considering the medical evidence applicable to the consideration of qualification for DSP.
"100(3) [Day person first qualified] If:
(a) a person lodges a claim for a disability support pension; and(b)the person is not, on the day on which the claim is lodged, qualified for a disability support pension; and
(c)the person becomes qualified for a disability support pension sometime during the period of 3 months that starts immediately after the day on which the claim is lodged;
the person's provisional commencement day is the first day on which the person is qualified for the pension and is an Australian resident and in Australia."
Applying the reasoning of Davies J in Freeman v Secretary, Department of Social Security (1987 –1988) 15 ALD 671 at 674, the issue for the Tribunal, having regard to all the facts proved before it, was whether the decision to cancel Mr. King's DSP on 5 January 1999 was the correct or preferable one – not whether Mr. King had an entitlement to a DSP as at the date of the Tribunal's decision ( May 2000).
Based on all the written and oral evidence before the Tribunal, the Tribunal agrees with the following conclusions made by the SSAT as to the extent of Mr. King's impairment for his various medical conditions:
Medical condition Impairment Table Impairment Points
Right and left shoulder pain 3 0
Osteoarthritis of the left ankle and knees 4 10
Tinnitus and hearing loss 1 0
Consequently, Mr. King's medical conditions total 10 points under the Impairment Tables and so Mr. King does not satisfy the requirement of 20 points which would enable him to qualify for DSP [Section 94(1)(b) of the Act]. That is, Mr. King does not qualify for DSP at the time it was cancelled on 5 January 1999.
Given this conclusion, the Tribunal does not need to consider the question of whether Mr. King has a continuing inability to work.
The Tribunal makes the further observation that Mr. King's medical conditions may have deteriorated further after the decision to cancel his DSP (see Dr. Ong's oral evidence, paragraph 7). However, some of this medical evidence (July 1999, March 2000) is beyond the relevant date for consideration of the decision to cancel his DSP on 5 January 1999 [see section 100 (3) of the Act]. This means that Mr. King still has the option to make a new application for DSP in the future when this evidence can be considered by HSA and so re-assess his total impairment points under the appropriate Tables. In addition, a re-assessment of his ability to work could also be made at this time - particularly, if the total impairment totals 20 points or more.
For the above reasons the Tribunal affirms the decision under review. This means the decision to cancel Mr. King's DSP on 5 January 1999 was the correct decision. Mr. King did not qualify for DSP at this date.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: .....................................................................................
B. Hitchcock, Secretary
Date of Hearing 8 May 2000
Date of Decision 15 May 2000
Applicant Mr. King, by telephone
Respondent Ms. J. Dwyer, Departmental Advocate
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