Kirwin and Secretary, Department of Employment and Workplace Relations

[2006] AATA 37

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 37

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V2005/309

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LEIGH KIRWIN

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS 

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date18 January 2006

PlaceMelbourne

Decision The decision under review is affirmed.

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

Senior Member

SOCIAL SECURITY – disability support pension – multiple illnesses – evidence of applicant and treating doctor does not support impairment of 20 points or continuing inability to work – decision affirmed

Social Security (Administration) Act 1999 Sch 2 s 4 (1)

Social Security Act 1991 s 94

REASONS FOR DECISION

18 January 2006   Mr John Handley, Senior Member

1.      Mr Kirwin made an application for Disability Support Pension (“DSP”) on 21 April 2004.  Centrelink engaged Health Services Australia to medically examine him.  A report (T8) arising out of that examination contained a finding that the claimed conditions were permanent but they did not cause any impairment.  An officer of Centrelink and subsequently an Authorised Review Officer (“ARO”) decided that Mr Kirwin did not qualify for DSP.  The Social Security Appeals Tribunal (“SSAT”) on 5 April 2005 affirmed those decisions.

2.      Mr Kirwin claims DSP for the conditions of “bladder outlet restriction”, “weakness in abdominal wall” and “diverticular disease”.  A report subsequently made of injury to the applicant’s knees has been withdrawn.

3.      Mr Kirwin appeared at the hearing on 16 January 2006 without representation.  Mr Todd appeared on behalf of the respondent.  The Tribunal documents comprised 112 pages of T‑documents lodged by the respondent together with a Statement of Facts and Contentions.  Mr Kirwin produced some documents relating to another claim he made for DSP in December 2005.  Those documents are not relevant to this review.  Additionally, the medical evidence appended to the claim form was created more than 13 weeks after the date of the claim which gave rise to the review by the SSAT.  That medical evidence cannot be considered in this review although it would appear it would not have been of assistance to Mr Kirwin in any event (refer Social Security (Administration) Act 1999 Schedule 2, s 4(1)).

4.      At the commencement of the hearing Mr Kirwin indicated that he preferred to have evidence heard from his current treating general practitioner, Dr Cheah.

5. Eventually Dr Cheah was located and evidence was heard from him. Mr Kirwin did not ask him any questions. Mr Todd directed his examination of Dr Cheah to Table 11.2 and 16 of the Impairment Tables found at Schedule 1B of the Social Security Act 1991 (“the Act”).

6.      Dr Cheah was of the opinion that the applicant rated 10 impairment points under Table 11.2 by reason of “bowel disorder; frequent moderate symptoms despite optimal treatment”.  Under Table 16, Dr Cheah did not find that the applicant attracted any impairment rating.  Dr Cheah said that Mr Kirwin would be able to undertake work which was not strenuous and did not expose him to heavy lifting, by reason of the abdominal hernia, and a workplace where toilets were accessible, by reason of his diverticular disease.  Otherwise, it was his opinion that Mr Kirwin could work for at least 30 hours per week.

7.      Mr Kirwin gave evidence.  With respect to his bladder illness he said that he suffers pain daily and has a sensation of needing to pass urine hourly.  He said his symptoms presently are worse than they were two years ago when the claim presently under review was lodged, despite consumption of medication having recently increased.  He said that his present complaint is of difficulty passing urine.  He said that he was not incontinent.

8.      Table 16 prescribes an impairment rating of Nil against criteria of “Minor stress incontinence.  Bladder outlet or urethral obstruction with mild symptoms”.  The criteria against a rating of 10 and 20 under Table 16 refers to loss of control of bladder or obstruction or need for catheterisation or incontinence with use of incontinence padding.  The criteria against a rating of 10 and 20 do not apply on the evidence of Mr Kirwin.

9.      As a fact, I am satisfied upon the evidence of Dr Cheah and upon the evidence of Mr Kirwin that an impairment rating of Nil is applicable with respect to Table 16.

10.     Mr Kirwin said that his abdominal hernia is located above his naval and was described by him as a “mound”.  He said that he had hernia repair surgery in 1991 but subsequently the area above his naval is tender upon touching but he does not experience pain.  He said he does not feel pain while sitting or standing but pain occurs when he vacuums at home.  He said that he does not engage in physical activity and did not believe that any further surgery would be successful.  Table 11.2 does not provide any criteria against an impairment rating of Nil with respect to the hernia but as against an impairment rating of 10, the criteria is “large abdominal hernia not easily reduced and resulting in persistent moderate symptoms”.  That criteria does not apply to Mr Kirwin.  He does not have persisting symptoms.

11.     With respect to the diverticular disease, Mr Kirwin said that he suffers from “inflammation” with pain in his colon.  He said that the pain occurs daily and he needs to use a toilet on three or four occasions per day with diarrhoea type symptoms.  He said a .8cm benign polyp was removed in May 2005 at colonoscopy.  These symptoms were described as similar to those existing in 2004 when his application for DSP was lodged.

12.     Under Table 11.2, the symptoms as described by Mr Kirwin are consistent with the opinion expressed by Dr Cheah.  This would attract an impairment rating of 10 for the criteria of “bowel disorder; frequent moderate symptoms despite optimal treatment”.  On the evidence heard from Mr Kirwin he would not attract an impairment rating of 20 for the criteria of “bowel disorder; marked symptoms such as regular diarrhoea and frequent abdominal pain only partially controlled by optimal treatment”.  On the evidence of Mr Kirwin, he does not suffer from abdominal pain, he said the pain exists in his colon and was not in the nature of “marked” as that description exists against the impairment rating of 20.

13. Qualification for DSP is to be found at s 94 of the Act. The two main qualifying elements are of a person with an impairment of 20 points or more under the Impairment Tables and having a continuing inability to work which is defined as work of at least 30 hours per week at award wages that exists in Australia even if it is not within a person’s locally accessible labour market.

14.     On the evidence heard from Dr Cheah and from Mr Kirwin, he does not have an impairment of 20 points or more under the Impairment Tables.  As a fact I am satisfied that he has an impairment of 10 points or more under Table 11.2 and then with respect to the condition of diverticular disease only.

15. Additionally, I would find on the evidence of Dr Cheah that Mr Kirwin would be able to work for at least 30 hours per week or more. It may be, as was asserted at the hearing, that an employer would be difficult to locate who would engage Mr Kirwin in employment having regard to his age, his need to be placed in a job where he was not exposed to repeated heavy lifting and where toilets were readily accessible and would be frequently accessed during work. However the identity of such an employer is not a relevant criteria under s 94 of the Act. The qualification is objective and objectively Mr Kirwin could work within the limitations suggested by Dr Cheah.

16.     Additionally, I am of the view, consistent with the examination by Mr Todd, that Mr Kirwin would not be impaired from undertaking educational or vocational training or on-the-job training during the next two years.  There is nothing that I heard in evidence or read in the T‑documents which would permit a finding that such training, if undertaken, would be unlikely to enable him to engage in work within the next two years.

17.     If such training opportunities exist with the assistance of Centrelink or other Agencies, I would encourage Mr Kirwin to take advantage of same.

18.     In all of the circumstances the decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of –

Mr John Handley, Senior Member

Signed:         .....................................................................................

Personal Assistant

Date/s of Hearing  16 January 2006
Date of Decision  18 January 2006
Solicitor for the Applicant          Self Represented
Departmental Advocate            Mr M Todd