King and Secretary, Department of Employment and Workplace Relations

[2006] AATA 734

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 734

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N  2006/344

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANK KING

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal  Ms N Isenberg, Member

Date 25 August 2006

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decision under review.

..............................................

Ms N Isenberg, Member

CATCHWORDS

Social Security Act – Newstart Allowance – exemption from satisfying activity test –Applicant did not qualify for exemption – decision under review affirmed.

LEGISLATION

Social Security Act 1991, s603C(1), s603C(2)

CASE LAW

Re Sargeant v Secretary, Department of Community Services [2005] AATA 1076

REASONS FOR DECISION

Ms N Isenberg, Member

ISSUE BEFORE THIS TRIBUNAL

In order to receive newstart allowance (‘NSA’) a person must satisfy an ‘activity test’, essentially demonstrating that he or she is looking for work.  Mr King was exempted from the activity test on the basis of medical evidence but, firstly on 24 February 2005 and then on 9 December 2005, Centrelink decided not to extend his exemption.  Therefore the issue to be determined is:

·Is Mr King incapacitated for work because of a sickness or accident and as a result exempted from satisfying the activity test to receive NSA, according to section 603C(1) of the Social Security Act 1991.

BACKGROUND

1.      On 19 May 2004, Mr King claimed NSA.  In support of his claim was a medical certificate from Dr Stott.  As a result, Mr King was granted exemption from satisfying the activity test during the period covered by medical certificate - from 19 May 2004 to 26 May 2004.

2.      Dr Stott provided further medical certificates:

·     29 June 2004: for the period 29 June 2004 to 15 July 2004 (T52, 156)

·     20 July 2004: for the period 20 July 2004 to 16 September 2004. (T52, 154)

·     15 October 2004: for the period 16 October 2004 to 16 November 2004. (T52, 151)

3.      Because Mr King had been providing medical certificates and seeking exemption from the activity test since the grant of NSA, Centrelink sent him a letter on 1 December 2004, requesting further information about his medical conditions. (T13, 36)

4.      On 28 January 2005, Mr King filed a treating doctor’s report (TDR) from Dr Robertson his orthopaedic surgeon and an employment assistance-customer information form. (T14- 37-44; T15, 45-50)

5.      At Centrelink’s request, on 14 February 2005, Ben Laybutt, a rehabilitation consultant examined Mr King and completed a work capacity assessment. (T16, 51-62)  This work capacity assessment report concluded that Mr King was fit to undertake suitable work for between 15 - 29 hours per week.  As a result, on 24 February 2005, Centrelink decided not extend Mr King’s exemption from the activity test. (T19, 68-69)

6.      As Mr King had been producing medical certificates for so long Centrelink, by its own review process, conducted a review to determine if Mr King was eligible for DSP instead of newstart allowance.  However, he did not meet the criteria. (T24, 84)

7.      On 3 November 2005, Mr King provided another TDR from Dr Stott. (T26, 86-93) It indicated that Mr King’s left knee impairment was likely to persist for more than 24 months.

8.      On 6 December 2005, Richard Robilliard, a rehabilitation consultant examined Mr King and provided a work capacity assessment report, (T30, 102-115) assessing Mr King as having a permanent left knee impairment with a rating of 10 points under the DSP impairment tables.  This report also concluded that Mr King was fit to undertake suitable work for between 15 - 29 hours per week.

9.      On 9 December 2005, Centrelink decided not to extend the exemption to Mr King from the activity test. (T32,117)  

10.     On 20 December 2005, Dr Molesworth provided medical certificates for Mr King, for the period 14 December 2005 to 3 January 2006. (T37, 123) On the same day a Centrelink officer spoke to the doctor, who reportedly advised that Mr King was capable of looking for work. (T38, 124).  On 3 January 2006 and 6 February 2006 Dr Molesworth provided further medical certificates for for the period 4 January 2006 to 29 January 2006 and from 30 January 2006 to 05 March 2006. (T44, 132 and T47, 136).

11.     Centrelink’s decision not to extend the exemption from the activity test was affirmed on review and by the SSAT.  On 30 March 2006, Mr King filed the present application for a further review before this Tribunal.

LEGISLATION

12. Subsection 603C(1) of the Social Security Act 1991 (“the Act”) defines the conditions under which a person is not required to satisfy the activity test on medical grounds.

603C(1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

(a) throughout the period the person is incapacitated for work because of sickness or an accident; and

(b) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and

(c) the incapacity is, or is likely to be, of a temporary nature; and

(d) if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for newstart allowance; and

(e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

(i) the medical practitioner’s diagnosis; and

(ii) the medical practitioner’s prognosis; and

(iii) that the person is incapacitated for work; and

(iv) the period for which the person is incapacitated for work; and

(f) the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

Work is defined in subsection 603C(2) as follows:

Work, in relation to a person, means work (whether full-time, part-time, permanent or casual) that:

(a) is of a kind that the person could, in the Secretary’s opinion, be reasonably expected to do; and

(b) is for at least 8 hours per week on wages that are at or above the relevant minimum wage.

CONSIDERATION OF THE EVIDENCE

13.     To obtain the benefit of S603C the condition must, relevantly, be only temporary and the applicant must not be able to work for at least eight hours per week at the kind of work he could be reasonably expected to do.

14.     Turning to Mr King’s capacity to work, as noted above, ‘work’ has a broad meaning which requires capacity to do work of a kind that he might reasonably be expected to do, for only eight hours per week.

15.     Mr King told me that he last worked in May 2004, as a forklift driver and a guillotine operator.  Previously, he had a fishing charter boat and had also been a skipper at Wiseman’s Ferry.

16.     Dr Robertson, orthopaedic surgeon, had scheduled a knee operation for September 2004, but Mr King felt he could not continue at work until that time.  He enquired at Centrelink about ‘sickness benefits’ but was told all that was available to him (as he had resigned) was NSA or disability support pension (‘DSP’).  However he was told from the outset that his condition was not, at that time, so bad that he would qualify for DSP.

17.     Mr King was granted an exemption from the activity test on 20 July 2004 on the basis of a medical certificate from Dr Stott which stated that he had musculo-skeletal disorder of a temporary nature. (T52, 154)  

18.     Following the operation, on 27 August 2004, Mr King said he had about a month of intensive physiotherapy and it appeared he was making a good recovery. 

19.     Another medical certificate was provided by Dr Stott on 15 October 2004, as a result of which Centrelink again exempted Mr King from the activity test.  This medical certificate also said that Mr King suffered from a temporary musculo-skeletal disorder and was unable to work. (T52, 151)  Dr Stott, in a telephone conversation with Centrelink reportedly advised that Mr King, in spite of the medical problems, was capable of looking for work. (T28, 124)

20.     Mr King said that after a couple of months however, the pain in his knee was worse than before the operation and he has been on painkillers ever since.

21.     In a TDR dated 25 January 2005, Dr Robertson confirmed the diagnosis of torn meniscus in left knee and but considered that Mr King’s condition would significantly improve within 3 to 24 months. (T14, 37-44) This report specifically mentioned that Mr King could return to work working a guillotine operator ‘8/24’, that is, eight hours per day, in spite of his condition.  Dr Robertson, at that time, appeared optimistic of Mr King making a good recovery, and considered Mr King’s condition likely to ‘significantly improve’ in the following two years.

22.      Centrelink referred Mr King to Advanced Personnel Management for a work capacity assessment.  Mr Laybutt, rehabilitaion consultant, examined Mr King on 14 February 2005 and found the impairment of his left knee to be temporary but noted that Mr King had a capacity for work without any intervention for 15 - 29 hours per week and within six months, for 30 hours per week. (T16, 51-62)  Mr King apparently told Mr Laybutt tht he had no knee joint pain unless performing strenuous activity.

23.     Mr King was dismissive of Mr Laybutt’s report because he thought he ‘was a physio’ and Dr Roberton’s report should be preferred, as he is his treating specialist.  It should be recalled that, only a few weeks earlier, Dr Robertson had considered Mr King capable of working eight hours per day.  In that regard, the reports are not inconsistent, with Mr Laybutt’s report actually being more favourable to Mr King.

24.      In a TDR dated 3 November 2005, Dr Stott relevantly stated that Mr King’s left knee impairment was likely to persist for more than 24 months.  He noted that, at that time, no further treatment was planned (T26, 86-93). Furthermore, he advised that Mr King would get pain with long periods of standing and walking or with repetitive bending and lifting.  This report, however did not discuss whether Mr King would be able to do suitable work in spite of his medical condition. 

25.     On the same day Mr King wrote (T27/96) that he thought he could do no physical work but wrote that he was ‘quite happy to drive a truck, bus or taxi’ and that his loss of his driver’s licence was an impediment to his return to work (p110). 

26.     At the hearing Mr King repeated his interest in resuming work in this area, as he had told the SSAT.  He expressed some concerns as to whether he would be able to drive while on medication.  He also confirmed his evidence to the SSAT that he thought he could do any work that allows him to sit down and did not require his knee to bear his weight for long periods or to bear a heavy load.

27.     Mr King said that by December 2005 he was seeing Dr Stott weekly, and was taking panadine forte and wearing an elastic knee guard for support.  He found his knee more annoying and he was more aggressive as a result.  At the same time, he said he was lethargic and would sleep much of the time.

28.     Dr Stott’s practice was taken over by Dr Molesworth who, in three medical certificates provided for Mr King, stated that the left knee condition was ‘temporary’ but described the date of onset as ‘ongoing.’  He considered the condition likely to show considerable improvement within two years.  He confirmed Mr King to be taking analgesics and noted that he was awaiting orthopaedic surgeon management.  In this regard, I note Mr King wrote in his application for review by the SSAT that his orthopaedic surgeon, Dr Sutherland, had wanted him to have an MRI to determine if his pain could be alleviated.  He did not proceed with that investigation because ‘Centrelink won’t accept any more medical certificates’.  He told the SSAT he was not prepared to pay the $200.00 it would cost him.

29.     Another work capacity assessment was conducted by Mr Robilliard, rehabilitaion consultant, on 6 December 2005, who found the left knee impairment to be permanent, causing a slight loss of active range of movement and a moderate interference with walking.  Mr King apparently told Mr Robilliard that he could walk 30-45 minutes along the beach.  He was observed to have some difficulty squatting and on stairs.  The report further stated that Mr King had a capacity of working for 15 - 29 hours per week. (T30, 102-115)

30.     On 23 December 2005 Mr King told a Centrelink officer that he was on painkillers ’24 hours a day’ and that he could not work because of the pain. 

31.     Even though the opinions of the rehabilitation consultants differ on whether the knee condition was permanent or temporary, there was agreement in both reports that Mr King had the capacity to work for 15 - 29 hours per week.  Even if this were something of an overestimate of his capability, his capacity would well exceed the requisite eight hours per week. 

32.     Centrelink contended that the opinion of the work capacity assessors should be preferred over the opinions of the medical practitioners in relation to Mr King’s capacity to work, on the basis that the work capacity assessor is an independent professional with knowledge of labour market issues and experience in assessing the impact of medical conditions on a person’s ability to work.  As such, the work capacity assessor is in a better position to properly determine Mr King’s capacity to perform any work or to undertake educational or vocational training.  I was referred to Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076 in which the Tribunal recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessor as to the applicant’s capacity to work or undertake retraining.

33.     I do not consider Mr King able to rely on Dr Molesworth’s reports as to his inability to undertake eight hours work per week in circumstances where he has declined the recommended further medical intervention from Dr Sutherland.

34.     Of particular note, was Mr King’s own evidence. He consistently indicated to Centrelink (T27, 96), to the SSAT and to me that he is willing to work as a truck, bus or a taxi driver, if he were to get his licence back.  He is endeavouring to have his suspension reduced.  He can use a forklift.  He can drive a boat.  Providing he has space to stretch his leg he thought he could do all these roles.  This is consistent with the more recent work capacity assessment.  He does not know how his medication may affect him.  He has aspirations to study law and thought he would be able to do this as it does not require standing for long periods.  He told me he is willing to try to use a computer. 

35.     In my view, in accordance with section 603C(2) he is not incapacitated from working for at least eight hours per week at award wages, in spite of his impaired knee.

36.     Having come to this view, it was not necessary for me to consider if his condition is temporary.  Hopefully though, Mr King will proceed to have his knee condition more fully investigated in accordance with Dr Sutherland’s recommendations.

DECISION

37.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, MEMBER

Signed: Jarni C Simpson ..........................................................................

Associate

Date/s of Hearing  10 August 2006
Date of Decision  5 October 2001
Solicitor for the Respondent     Pankaj Sharma