Kingsley; Secretary Department of Family and Community Services

[2004] AATA 1138

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1138

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/557

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And JEFFREY KINGSLEY

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date2 November 2004

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Mr Kingsley’s disability support pension was correctly cancelled on 19 April 2001.

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

Ms N Bell   Senior Member

SOCIAL SECURITY – Disability Support Pension – Whether Decision to Reinstate Pension Correct

Social Security Act 1991

REASONS FOR DECISION

2 November 2004   Ms N Bell, Senior Member

1.      Mr Kingsley, who is 31 years old, has been receiving disability support pension since 1995.  At that time he suffered from nerve damage to his non-dominant left arm after being pushed through a plate glass window, and from the onset of Q-Fever, which he contracted working at the Abattoirs in Inverell.  In April 2001, after conducting a review, Centrelink decided to cancel Mr Kingsley’s disability support pension.  That decision, which had been affirmed by an Authorised Review Officer, was set aside by the Social Security Appeals Tribunal (“SSAT”).  The Secretary of the Department of Family and Community Services applied to this Tribunal to review the SSAT’s decision.

2.      On the first occasion on which this application was listed for hearing, Mr Kingsley did not make himself available by telephone as had been arranged.  Following enquiries made by my Associate, Mr Lozynsky for the Secretary, and Mr Kingsley on his own behalf, consented to the Tribunal reviewing the decision by considering the documents lodged with the Tribunal.  No hearing was held (Section 34B Administrative Appeals Tribunal Act1975).

3.      I must consider whether Mr Kingsley was eligible to receive disability support pension at the time at which the decision to cancel was made, that is, in February 2001 (Freeman and Secretary Department of Social Security (1988) 87 ALR 506).

4.      The T documents in this application contain a great deal of medical and other information going back as far as 1994 and covering the period up to 2003.  In addition, Centrelink lodged with the Tribunal additional documents, including medical reports written as late as June 2004.

5.      I have restricted my consideration, in view of the principles in Freeman and Secretary, Department of Social Security (supra), to those documents which provide evidence of Mr Kingsley’s condition and eligibility around February 2001.

6. Section 94 of the Social Security Act1991 (“the Act”) provides three basic requirements for eligibility for disability support pension.  They are:

·     A physical, psychiatric or intellectual impairment; and

· An impairment rating of 20 points or more after assessment under the Impairment Tables contained in Schedule 1B to the Act; and

·     A continuing inability to work.

7.      There is no dispute that Mr Kingsley has a physical impairment by virtue of his left upper limb injury.

8.      In relation to the secondary requirement of 20 points, three conditions have been raised and assessed.  I will deal with each in turn.

9.      I turn first to Mr Kingsley’s Q-Fever condition.  I had regard to medical reports by Dr Hall, approved Medical Practitioner, dated 22 January 2001; Dr Vidler, Health Services Australia Medical Advisor, dated 29 January 2001 and Dr Palmer, Mr Kingsley’s treating General Practitioner, dated 10 October 2000.

10.     Dr Hall considered that there was no objective evidence of persisting sequelae to the Q-Fever infection.  Dr Vidler considered that there was no evidence of any persisting effects from the Q-Fever.  Dr Palmer reported chronic Q-Fever with clinical features being lethargy; and aches and pain; that the condition would fluctuate over the long term, and that treatment was with intermittent antibiotics and dietary supplements.

11.     I note that Dr Hall referred to a conviction, in May 2000, of Mr Kingsley for stock theft.  He also commented on Mr Kingsley’s hands being heavily calloused.

12.     These matters undermine the Applicant’s assertions at the relevant time (see Medical Review Form, 17 October 2000, T15) of intense fatigue when walking; needing to rest constantly; a general lack of energy; persistent tiredness and aching muscles.

13.     On balance I consider that the condition had resolved by January 2001, producing minimal symptoms that would not interfere with Mr Kingsley’s overall functioning.  On this basis I consider that the condition attracted an impairment rating of Nil.

14.     In relation to Mr Kingsley’s psychiatric condition I had regard to the reports of Dr Viddler, dated 29 January 2001; Dr Palmer, dated 10 October 2000; and Dr I H Synnott, treating Psychiatrist, dated 9 January 2002.

15.     Dr Viddler considered there was no evidence of diagnosis, treatment or significant symptoms.  Dr Palmer noted an adjustment disorder with the date of onset in 1995 and symptoms of reduced motivation and tiredness.  He reported that the condition was treated with antidepressant medication.  I note however, the Applicant’s evidence to the SSAT was that he does not take antidepressant medication.   

16.     Dr I H Synnott reported that:

“…the patient has no symptoms that are consistent with a major psychiatric disorder.  His irritability, sense of frustration and ‘bad temperedness’ are to do with his personality and coping mechanisms, rather than being related to a psychiatric illness.  It would appear that Mr Kingsley sees himself as invalided and is entrenched/stuck in ‘the sick role’.  There is no psychiatric cause for his impairment.”

17.     I note that later assessments of Mr Kingsley’s psychiatric condition were made by Centrelink psychologists and a final assessment of adjustment order attracting 10 impairment points was made.  However, I prefer the evidence of the more highly qualified and treating Dr Synnott.

18.     I consider, therefore, that Mr Kingsley has no psychiatric impairment and therefore attracts no impairment points for this condition.

19.     In relation to Mr Kingsley’s left arm I consider the reports of Dr Hall, dated 22 January 2001 and the reports of Dr Palmer and Dr Vidler.  Dr Hall reported that:

“…On examination he is well tanned and heavy callousing of both hands indicating an active outdoor life with considerable manual labour.  There is no evidence of significant residual injury in the left upper limp”.

20.     Dr Hall found no wasting, a full range of movements in Mr Kingsley’s fingers, wrists, elbow and shoulders and no evidence of weakness.

21.     Neither Dr Palmer, nor Dr Vidler comment on the condition.  I note that the Applicant, when giving evidence to the SSAT, said that he has reduced grip strength, numbness and loss of finger dexterity.  He confirmed that he is right hand dominant. I also note, however, that Mr Kingsley made no mention of his left arm in a Review Form completed by him close to the time of the cancellation.

22.     On this basis I do not consider that Mr Kingsley suffers any functional impairment of a kind that would attract an impairment rating.

23.     It follows that in combination Mr Kingsley’s conditions attract an impairment rating of nil.  He therefore did not qualify to receive disability support pension at the time of Centrelink’s cancellation in April 2001.

decision

24.     The decision under review is set aside and in substitution therefore the Tribunal decides that Mr Kingsley’s disability support pension was correctly cancelled on 19 April 2001. 

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ..........[Linda Blue]........................................
  Associate

Date of Hearing Heard pursuant to section 34B of the Administrative Appeals Tribunal Act 1975

Date of Decision  2 November 2004
Solicitor for the Applicant          Mr George Lozynsky