Klaassens and Department of Family and Community Services - [2000] AATA 583

DECISION AND REASONS FOR DECISION [2000] AATA 583

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/921

GENERAL ADMINISTRATIVE DIVISION          )
           Re      JOHANNES KLAASSENS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal DR J D Campbell

Date 14 July 2000
PlaceSydney

Decision The Tribunal determines that the decision under review be affirmed.

…………………………………..
Dr J D Campbell
Member
CATCHWORDS
Social Security – Disability Support Pension – Impairments – Assessment – Continuing Inability to work.
Social Security Act 1991, sections 94, 100, Schedule 1B

REASONS FOR DECISION

DR J D CAMPBELL

June 2000

Mr Johannes Klaassens ('the Applicant') seeks a review of the decision of the Social Security Appeals Tribunal dated 25 May 1999 which affirms the decision of an authorised review officer ('ARO') dated 15 February 1999. This latter decision affirmed the decision of a delegate of the Secretary, Department of Family and Community Services ('the Respondent'), dated 19 October 1998 to reject the Applicant's claim for disability support pension.
A hearing was held before the Tribunal at Wagga Wagga on 24 February 2000, at which the self-represented Applicant presented oral evidence. The Respondent was represented by Mr Cox, an advocate from the Administrative Law Section of Centrelink.
The following written material was placed into evidence before the Tribunal.
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T17 pp.1 – 94
Medical Report of Dr Ayub Khan dated 6 September 1999     Exhibit A1
Medical Report of Dr Ayub Khan dated 28 September 1999   Exhibit A2
Medical Report of Dr M Jude dated 18 August 1999    Exhibit A3
Medical Report of Dr M Jude dated 3 August 1999      Exhibit A4
Medical Report of Dr N Stephenson dated 22 June 1999       Exhibit A5
Respondent's Statement of Facts and Contentions dated 10 February 2000          Exhibit R1

issues

The relevant issues before the Tribunal are:
(1) Whether the applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 or more under the impairment table in schedule 1B of the Social Security Act 1991; and
(2) if so, whether or not he has a continuing inability to work because of the impairment because –

the impairment of itself prevents him from doing any work for at lest 30 hours per week at award wages within the next 2 years; and either
the impairment of itself sufficient to prevent him from undertaking educational or vocational training or on the job training during the next 2 years; or
such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next 2 years. (R1).

legislation

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular subsections 94(1) - (5), 100(3) and the Schedule 1B Tables for Assessment of Impairment for Disability Support Pension ('Schedule 1B Impairment Tables')
background
The Applicant submitted a claim and this was received by the Respondent on 7 September 1998 (T3). A treating doctor's report was submitted on 8 September 1998 (T6). A Health Services Australia medical assessment report was completed on 13 October 1998 (T10). The Applicant's claim was rejected on 19 October 1998 (T11) and the Applicant notified on 26 October (T12). An internal review confirmed the decision on 13 January 1999 (T14). The decision was affirmed on 15 February 1999 by the ARO (T17) and further affirmed by the Social Security Appeals Tribunal on 25 May 1999 (T2).
evidence – the applicant
Mr Klaassens told the Tribunal that he was born in Holland on 22 November 1943 and attended school for seven years followed by two years at Technical College, after which he served an apprenticeship in paving until he was nearly 19 years old. After working for one year in Germany, he migrated to Australia in 1963, where he worked in a steel factory for twelve months as a general labourer on farms for twelve months, as a labourer in a meat works in North Queensland for six months, as a general hand on a cattle property for four years, as a labourer for six months and as a leading hand/supervisor for John Holland. In this later role he worked in Mackay for two years, in Mittagong for four years, Toowony Power Station for three and half years, with Abigano on a dam for 2 years and, on road works at Goulburn-Mittagang for three and half years, West Wallsend for 2 years and tha Yass bypass for one year.
The Applicant stated that had an accident, while working on the Yass bypass, when a car in which he was a passenger hit a brick wall, causing damage to his back and thoracic spine. He received some compensation and third party accident insurance. The applicant stated he attempted to return to work, but his company was dissolved, when he was no longer able to adequately supervise his employees. In response to questions in cross-examination the Applicant stated the accident was in 1993, after which he did not work for two years and he returned to work in April 1996 acting as a foreman in a friend's company, telling the employees what had to be done. The Applicant stated that he received his accident insurance money in January 1997 and, after an argument with the stepson of the owner, he ceased work on 10 June 1998.
The Applicant told the Tribunal that he had the following medical conditions and their associated clinical features:

(a)Upper Back Since 1996, sharp pains on lifting, particularly when the object is heavy. The pain is centred between the shoulder blades and radiates up the back of neck to the
head.
Experiences pain on twisting one to three times a day.
Experiences pain sometimes when sleeping.

(b)Lower Back               Experiences pain posteriorly at the level of the belt line when bending. No radiation. Arises from an old crush injury. Treated by Chiropractor.
(c)Neck  Experiences dull pain in neck posteriorly. Pins and needles in hands every night, no feeling in end of fingers of right hand for many years.
(d)Headaches               Occur everyday when he does something.
(e)Left shoulder              Operation on left shoulder in 1970 or thereabouts with plate being fitted. Painful on occasions.

The Applicant informed the Tribunal that he takes minimal medication for his conditions, with Codral Forte and Panadol being the preferred medication on those occasions. The Applicant stated he is able to drive a car, with his four wheel vehicle being purchased with some of the settlement money. He lives with his wife in a small settlement outside of Griffitth and when driving to Wagga he had to stop half way for half an hour. The Applicant stated that he has a short term memory loss, and when he was working he would drink up to a carton of beer a day. The Applicant stated that he has had high cholesterol, and currently he is not troubled with hypertension.
Since ceasing work, the Applicant stated he has been looking for work and would work if he could in a supervisory foreman role on a construction site. At the time of the hearing the Applicant stated he was doing odd jobs around the house, but on somedays he is unable to push the lawnmower.
medical evidence
In completing the work and medical detail section which was part of his application for the disability support pension on 8 September 1998, Mr Klaassens listed his disabilities as a back injury following a car accident in 1993, which made it very difficult to work or lift above the torso. In particular he stated that the disability sometimes made it difficult with sitting, standing or walking and often with driving. He stated that it caused difficulty all the time with lifting and carrying, often with bending and operating appliances and sometimes with sleeping, attending appointments and caring for others. (T4, pp.43 - 44).
In a treating doctor's report dated 8 September 1998, Dr Arnaudon listed the Applicant's conditions and associated clinical features as:

(a)Cervical and thoracic          Pain from movement of cervical and thoracic spine.
back pain due to                   Also low back pain aggravated by activity. Onset
whiplash injury  1993. Long term and stable.

(b)Low back pain  Back pain. Onset 1993. Long term and stable.
(c)Left shoulder  Surgery to left shoulder. Onset 1973. Restricted
permanent dislocation        movement. Shoulder catches. Long term and stable.

Dr Arnaudon stated that the Applicant had attended his practice three times in the last twelve months and that he would not be able to return to any full time work for more than two years, but was able to return to part time work immediately. Further, as regards his work, ability Dr Arnaudon considered the Applicant's workability was affected by his inability to lift, carry and move objects, some constraint on his mobility and difficulty in moving between tasks, as well as difficulty in persisting at a task for more than 20 minutes and his likelihood to be absent from work on four or more days a month (T5).

In a medical report dated 24 January 1997, Dr G McGroder, a Consultant Occupational Health Physician, detailed the following opinion as a result of his examination of the Applicant on 20 January 1997:
Diagnosis & Consistency: In an incident on 3 August 1993, Mr Klaassens sustained slight compression fractures of T3, 4 and 5. This is consistent with the injury he describes where the vehicle in which he was travelling bounced and he hit his head on the roof and was thrown around inside the cabin. His subsequent medical history is consistent. He has residual pain and restriction in his work capacity.
Mr Klaassens also has fractured the right middle finger with ongoing deformity and loss of function. He alleges that this occurred because of his back problem, and this is reasonable.
Prognosis: I feel that Mr Klaassens will continue to have symptoms consistent with compression fractures of the upper thoracic spine. I can think of nothing in the way of medical or surgical intervention that would benefit him. A general back mobilising an strengthening program may be of some benefit.
Fitness for Work: Mr Klaassens is fit for work that does not involve significant bending to lift weights greater than 10 kilograms. He should not lift weights greater than 5 kilograms above shoulder level. He should not have to maintain fixed or awkward positions of the spine, or lift whilst in an awkward position, even light weights. He is fit for work mainly in supervisory capacity, which could well be utilised, considering his experience.
Permanent Disability: using American Medical Association Tables as a guide, I would assess the percentage disability of the back to be 5%. The American Medical Association Tables rely on objective findings, and in Mr Klaassen's case, there is little in this way to find but judged by his symptoms he may well have a more significant loss. (T9, p.64)
In an assessment medical report dated 13 October 1998, Dr Thomas made the following observations,
This man is 55 next month. He has worked as a bridge construction worker for most of his adult life, but had to stop physical labouring in 1993-94 due to an injury in which he suffered compressed fractures of 3 thoracic vertebrae. Since this time he has worked in a supervisory role, last working in June 1998. He had done this for 2 years until a falling out with the person employing him.
He is able to drive for 30-60 minutes before needing a break, and can then continue further. He can do light work and is able to manipulate light objects quite well. He transfers well, and has a good functional range of movement in his back and neck. He is unable to lift either arm much above his head because of the pain it causes him, and so is unable to do any work above his head. A previous operation on a recurrently dislocated shoulder was a success, and he has no ongoing impairment from this.
All his conditions are permanent with a rating of 20. He is fit to continue work in a supervisory role, as he has been doing, but is unfit for his previous work involving labouring. Physically he is capable for light work with restrictions on prolonged standing bending, twisting or lifting more than 10kg. He is unable to work above his head. He is physically capable of office work, or work as a chashier, checkout operator or console operator. He however has only ever worked in physically demanding jobs and given his lack of suitable skills would find it difficult to attract suitable employment. He is fit for retraining. Rehabilitation is probably not necessary as he will be unable to do moderate to heavy work again, and there are no physical limitations to his ability to perform light work. (T10, p.79)
In two medical reports dated 6 September 1999 and 28 September 1999, Dr Ayub Khan, a general practitioner, details that he had seen the Applicant several times in the past year and that he complained of headaches, pain and stiffness in the neck, pain in the lumbar-sacial region with stiffness, pain in the left shoulder and in the pelvic area, as well as feeling depressed and unable to work. He also has pain in both hands (Exhibit A1, A2).
In two reports dated 3 August 1999 and 18 August 1999, Dr Jude, a consultant neurologist, reports that after examination and nerve conduction studies, there was no evidence of carpel tunnel syndrome and as the hand pain has always been intermittent, it may be necessary in the future to make sure that there is no compressive cervical spondylotic disease by performing an MRI scan (Exhibit A3, A4).
In notification of non-acceptance of a referral by Centrelink, Ms Westmacott, stated on 28 June 1999 that the Applicant appeared unmotivated for rehabilitation as his age and injuries will prevent him from being able to find work (Exhibit A1 attachment).
submissions
The Applicant contended that the disabilities arising from his back, neck, shoulders and hands were impairments which, when assessed, had a combined rating of 20 points or more and because of restrictions arising from his impairments, his age, past work experiences and the opinion of Drs Khan and Arnaudon, he was unable to work and that he therefore qualifies for a disability support pension.
The Respondent, while conceding that the Applicant's impairment has a combined impairment rating of 20 points or more, contends that both the Applicant's work history and the non-medical reasons for ceasing work in June 1998 and the medical opinions of Drs McGroder and Thomas clearly demonstrates that the Applicant does not have a continuing inability to work and therefore fails to qualify for disability support pension.
consideration and findings
The Tribunal in considering this matter notes the following relevant legislation, namely subsections 94(1) - (5) in part:
94 Qualification for disability support pension
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 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) 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.

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(4)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the
Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely 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 impairment;
'on-the-job 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.

Subsection 100(3) of the Act nominates that the Tribunal will focus its attention to the Applicant's impairment circumstances and consequences in relation to his work ability on the period commencing with the lodgement of the claim for disability support pension and ceasing three months later, with the date of the commencement of the three month period being the day after lodgment ('operative period'). Material presented which falls outside the operative period may be used by the Tribunal, but only in such circumstances where it assists the Tribunal in gaining a greater understanding of the impairments and effects thereof on the Applicant's work abilities during the operative period.
In considering the evidence of the Applicant, the medical reports of Drs Arnaudon and Thomas, the Tribunal concludes that the Applicant had the following impairments and associated clinical features during the operative period:

(a)Cervical spine  Dull pain, at the posterior aspect of neck, aggravated by activity (Applicant, Dr Arnaudon, Dr Thomas) Near normal range of movement of cervical spine. Long term and deteriorating.
(b)Thoracic lumbar spine        Experiences pain posterior aspect of back at level of belt line. No radiation. Aggravated by bending, carrying and lifting (Applicant, Dr Arnaudon, Dr Thomas). ¼ loss of normal range of movement of Thoracic lumbar spine. Long term and deteriorating.
(c)Upper limbs  Pain in back at level of shoulder blades. Unable to lift either arm above shoulder level. Experiences pins and needles in hands every night. No feeling in end of fingers of right hand for many years (Applicant, Dr Arnaudon, Dr Thomas). Osteoarthritis of both shoulder joints, left greater than right, (X-ray, 6 June 1992, Exhibit A4). Fracture of distal interphalangeal joint middle finger in right hand in 1996, stiffness.

The Tribunal, in noting the reports of Drs McGroder and Khan, concludes that the report of Dr McGroder is consistent with the findings of fact outlined, while the reports of Drs Khan and Jude indicate to the Tribunal the likelihood of further degenerative process occurring outside the operative period, and which will undoubtedly be considered along with further diagnosis investigations in the future. They are not considered by the Tribunal in the context of this matter, as they introduce new conditions or alternatively further deterioration outside the operative period in question.
As a result of the Tribunal's finding of facts and associated clinical features the Tribunal further finds that the Applicant has the following restrictions in relation to his work ability

(a)Inability to twist suddenly, carry, lift or bend repeatedly. Weight restriction to five kilograms.
(b)Not able to lift weight above shoulder level.
(c)Not able to maintain fixed or awkward positions of the spine. Pain causes limitation of ability to drive (30–60 minutes) and likewise limits prolonged standing.
(d)Not able to work at a labouring activity.

The Tribunal further finds, having considered the clinical features outlined in the finding of facts, that the Applicant's impairments, when assessed under the appropriate Schedule 1B Impairment Tables, have the following ratings:
Upper limb function: Table 3 5 points for left arm
10 points for right arm

Cervical spine: Table 5.1 nil points (normal or nearly normal range of
movement.)

Thoracic lumbar spine Table 5.2 10 points (loss of quarter range of normal
Movement; back pain with physical
activities, standing and driving for 60
minutes.)

In concluding that the Applicant's impairments have a combined rating of 25 points under the Schedule 1B Impairment Tables, the Tribunal finds that the Applicant satisfies section 94(1)(a) and (b).
In concluding that the Applicant does not have a continuing inability to work, the Tribunal acknowledges the following matters/opinions:

(a)Dr McGroder considered the Applicant to be fit for work in January 1997 as, indeed, the Applicant was working at that stage;
(b)the Applicant left work in June 1998 because of an interpersonal issue and not as a result of his impairments;
(c)Dr Arnaudon considered the Applicant able to undertake part time as opposed to full time work; and
(d) that Dr Thomas considered the Applicant fit to continue work in a full time supervisory role and/or able to undertake light work on a full time basis. Further Dr Thomas considered that the Applicant is fit for retraining and that there are no physical limitations to his ability to perform light work.

While acknowledging both the Applicants restrictions, which arise from his impairments and which have been nominated earlier in this decision and the Applicants previous work experiences, his age and difficulty in securing alternative employment (matters which cannot be taken into consideration) the Tribunal has given preference to the opinions of Drs Thomas (in particular) and Dr McGroder. While noting the opinion of Dr Khan, the Tribunal finds that such opinions relate to the Applicant's impairments at the times nominated, all of which are outside the operative period.
Further in reaching such a finding and indeed, in being specific the Tribunal has concluded that the Applicant does not have a continuing inability to work because:

(a) the impairments of themselves are not sufficient to prevent the Applicant from doing any work within the next two years; and
(b) the impairments do not prevent the Applicant from undertaking educational or vocational or on-the-job training programs during the next two years; and
(c) such training is not unlikely (because of the impairments) to enable the Applicant from doing any work within the next two years.

The Tribunal concludes that the Applicant does not satisfy subsection 94(1)(c)(i) in that he has failed to satisfy subsection 94(2)(a) and (b) of the Act. Accordingly it is the Tribunal's ultimate finding that the Applicant does not qualify for disability support pension.
determination
The Tribunal determines that the decision under review be affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed:         .....................................................................................
  Associate
Date of Hearing   24 February 2000
Date of Decision                    14 July 2000
Representative for the Applicant                Self Represented
Representative for the Respondent          Mr Cox

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Citations

Klaassens and Department of Family and Community Services [2000] AATA 583

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