Lumsden; Secretary, Department of Family and Community Services

[2002] AATA 1295

DECISION AND REASONS FOR DECISION [2002] AATA 1295

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/410

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

DECISION

Tribunal       Rear Admiral A R Horton AO, Member             

Date13 December 2002 

PlaceMudgee 

Decision      The decision of the Social Security Appeals Tribunal of 14 February 2002 is set aside, and in substitution therefor the Tribunal determines that Mr Kenneth Lumsden, the Respondent, was no longer eligible for the disability support pension on 26 July 2001.   

[SGD] Rear Admiral A R Horton AO
  Member
CATCHWORDS
SOCIAL SECURITY – cancellation of disability support pension – review of SSAT decision to set aside primary decision to cancel – whether Respondent has physical, intellectual or psychiatric impairments – whether total impairment of 20 points or more – whether Respondent has continuing inability to work

Social Security Act 1991 – section 94, schedule 1B
Social Security (Administration) Act 1999 – section 80

REASONS FOR DECISION

Rear Admiral A R Horton AO, Member             

1. This is an application by the Secretary, Department of Family and Community Services ("the Applicant"), for review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 14 February 2002, which set aside a decision of a Centrelink delegate of the Applicant dated 26 July 2001 to cancel payment of disability support pension ("DSP") to Kenneth Lumsden ("the Respondent").  The original decision was reviewed and affirmed by an Authorised Review Officer ("ARO") of Centrelink on 22 November 2001.

2. The Applicant lodged an application for review by the Administrative Appeals Tribunal ("the Tribunal") on 22 March 2002.   A hearing took place at Mudgee on 11 October 2002.   Ms H Schuster, from the Advocacy and Administrative Law Team, Centrelink, appeared as advocate for the Applicant.   The Respondent was self- represented.

3. The Tribunal had before it the documents provided by the Applicant pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents").   The Tribunal also took into evidence the following documentation:

Exhibit A1Facsimile from Bridgestone Tyre Centre (Greg's Tyre and Mechanical Services) dated 30 April 2002.

Exhibit R1Treating Doctor's Report from Dr M Nicholson, General Practitioner, dated 21 June 2002.   

LEGISLATION  

1. Mr Lumsden was granted DSP on 10 February 1994, based on an impairment rating of 25 per cent under the legislation and impairment tables then extant.  In  2001 a medical review was undertaken by the Applicant and Mr Lumsden was found to have a total impairment rating of five points and to be fit for work of 30 hours per week.  Accordingly DSP was cancelled on 26 July 2001, this decision in turn being set aside on 14 February 2002 by the SSAT.

2. Section 94 of the Social Security Act 1991 ("the Act") defines the qualification criteria for DSP and states, relevantly:

   "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;
   (ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

   (d) the person has turned 16; and
   (e) the person either:

   (i) is an Australian resident at the time when the person first satisfies paragraph (c); or
   (ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
   …

   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.

   Note: For work see subsection (5).

   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 impairments.
   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.

   …"

3. Section 80 of the Social Security (Administration) Act1999 provides the authority for the cancellation of a pension, stating relevantly:

   "Cancellation or suspension determination
   (1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
             (a) who is not, or was not, qualified for the payment; or

   (b) to whom the payment is not, or was not, payable;

   the Secretary is to determine that the payment is to be cancelled or suspended.
   …"

4. Impairment is assessed against the work related Impairment Tables at Schedule 1B of the Act. The introduction to these Tables states, relevantly:

   "1.       …

   2.        These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. …

   3.        These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. …

   4.        A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. …

   5.        The condition must be considered to be permanent. …       
   …

   8.        In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.
   …"

EVIDENCE BEFORE THE TRIBUNAL  

1. Mr Lumsden was born in May 1955.   He went to school in Mudgee, and still lives in that town.  On leaving school, he went to work as a slaughterman in the local abattoirs.  In 1979 he underwent open-heart surgery for the replacement of an aortic valve, this seemingly resulting from rheumatic fever in his childhood.  He was off work for twelve months before returning to light duties for a further six months, when he resumed full time work.

2. In 1985, Q fever endocarditis infected the pig tissue aortic valve, and a replacement metal valve was fitted.   He was placed on Warfarin and continues on that medication to the present day.  Again, he was off work for twelve months, followed by six months light work before returning to full time work.  He gave evidence of difficulty coping with what was heavy labouring work, and in time, and on the advice of his doctor, accepted a pay-out from the abattoirs (1991).  He subsequently received sickness benefits until 1994, when on the advice of the Commonwealth Rehabilitation Service ("CRS") he applied for DSP (CRS report, T4, p23-24, undated).

3. The CRS report referred to anxiety and stress associated with the Respondent's cardiac condition.  His general practitioner at the time, Dr P Haron, diagnosed a condition of depression and an occasion of convulsion with loss of consciousness (T5). The examining doctor (Dr T Brown) described his condition as "moderately severe cardiac disability with a lack of exercise tolerance which is deteriorating", leading to depression and with an inability to undertake full-time work (T6, p39).  DSP was accordingly granted.   Later that year, he was voluntarily admitted to Bloomfield Hospital, Orange, for eight days, his medication overdose condition being described (T8, p50) as "an impulsive act" related to intoxication and stress.    

4. In 1996, Mr Lumsden started casual work at Bridgestone Tyre Centre (Greg's Tyre and Mechanical Services), Mudgee, an arrangement that continues to the present.  His employer was an old school friend, and hence he was given some latitude that may otherwise not have been available, in regard to his medical condition and limitations on his ability to undertake heavy physical tasks. He described his tasks as delivering truck and earth moving tyres in the Bathurst/Orange area, and rotating and fitting vehicle tyres.  When questioned as to the physical effort required for these tasks, Mr Lumsden stated that he had mechanical loaders for the heavy tyres, and the fitting of small vehicle tyres was within his capabilities, but could lead to some pain in the chest.  Since about 1997 or 1998, Mr Lumsden has also been driving a school bus for about six hours a week, and on occasions drives a truck for Greg's father. 

5. Mr Lumsden explained to the Tribunal that he accepted the requirement whereby his DSP payment was reduced, as income from his casual employment increased.   He saw the former as providing him with security.  The arrangement with Greg gives him the latitude to work days and hours of his choosing.  He stated that he used to work as required on any day of the week.  In 2001, when he moved out of home due to marriage difficulties to a caravan park for some months, he was working "long hours…over 33 hours per week."  He told the Tribunal that in that period he collapsed on one occasion, being admitted overnight into Mudgee Hospital.  Thereafter, he reduced his workload at Greg's Tyre Service and more recently – "in the last six or eight months" – has been working some 22 to 24 hours per week, mostly Tuesday, Wednesday and Thursday.   He remains on 8 mg daily of Warfarin and periodically, but not at the present time, has been prescribed Prothiaden for his depression.

6. Exhibit A1 is a response dated 30 April 2002 from Bridgestone Tyre Centre to a request by the Applicant for information as to the Respondent's employment conditions.   It confirms that he commenced casual employment in May 1996, and was still so employed in April 2002. It confirms the duties as described to the Tribunal by Mr Lumsden, notes that employment for 2000/2001 was for 52 weeks, and for the period June 2000 to April 2002, (given as 94 weeks), Mr Lumsden worked a weekly average of 33 hours. 

7. A pay record referring to "Ken Lumsden" is at T13, p84.  In the recorded five week period in early 2000, the weekly minimum hours is recorded as 36.  In an attachment to Exhibit A1, and based on the evidence to the Tribunal of Mr Lumsden that his gross hourly rate – until recently – was $13.50, the lowest weekly hours worked between February and April 2002, is recorded as approximately 26, with the highest being over 45.   In the course of considering hours worked, Mr Lumsden expressed concern that the figures available to the Tribunal overstated the true situation. 

8. As to his non-work activities, Mr Lumsden does not do housework, that being the responsibility of his wife, but mows the lawn and does some gardening.  He can do a limited amount of other physical activity such as walking and digging.   He plays no sport and does no other exercise.

MEDICAL EVIDENCE

1. The T-documents before the Tribunal provide supporting evidence of the Respondent's medical conditions in respect of matters relating to his heart surgery and depression at the time DSP was granted (1994). In 1996, his cardiac condition was reviewed by Dr Hall, cardiologist, who found "an inverted T wave in Lead V3", but otherwise considered his condition normal (T8, p52).   In a Treating Doctor's Report ("TDR") at that time, his general practitioner, Dr Haron, again diagnosed depression (T9); the Examining Medical Practitioner, Dr Leal, considered this condition to be improving because Mr Lumsden was able to work part-time (T10, p68).

2. Dr Nicholson, general practitioner, reported on Mr Lumsden in February 1999 (T12).  He diagnosed a continuing long term anxiety/depressive condition, and a reduced exercise tolerance.  He considered Mr Lumsden could work part–time but did not consider he could return to any kind of full-time work of more than 20 hours per week for more than two years.

3. A Medical Review of Mr Lumsden's conditions commenced in May 2000.   Dr Nicholson did not diagnose any anxiety or depressive condition.  Seemingly based on a lack of energy resulting from the valve replacement and the physical implications of the chest surgery, Dr Nicholson gave his opinion that Mr Lumsden could never return to abattoir work, but could otherwise work more than 20 hours per week, with limitations of endurance and occasional days off because of his impairment (T16).

4. Dr P Kamenyitzky of Health Services Australia ("HSA") examined Mr Lumsden for the Applicant on 14 June 2000.   He diagnosed only an aortic valve prosthesis condition, with shortage of breath on moderate exertion, leading to a combined impairment rating of 20 points under Table 1 of the Impairment Tables.  His assessment in respect of ability to work was "unfit for any heavy work, but may be fit for light duty on a full -time basis in the next two years after he has suitable vocational training and vocational rehabilitation" (T17, p113). Based on this medical report (and the evidence of Mr Lumsden), and no later medical reports being made available, the SSAT had difficulty in accepting the finding by Centrelink some twelve months or so later that the total impairment rating was five points, which resulted in the cancellation of DSP. Accordingly the SSAT set aside that decision.       

5. The Tribunal has the benefit of that later documentation that led to the assessment of five total impairment points.  In a further TDR seemingly completed in June 2001 (T27, p137), Dr Nicholson diagnosed the aortic valve prosthesis as well as depression.  He noted 6mg Warfarin medication daily for the former, and an expectation that in time, Prothiaden medication might be needed again for the latter condition.  At question 2 in respect of "when is the patient likely to be able to return to any kind of full time work for at least 30 hours per week?", he ticked "now".  He considered Mr Lumsden would not benefit from training, education or rehabilitation.

6. The subsequent Medical Assessment was undertaken by Dr B Forssman, Senior Medical Adviser of HAS on 23 July 2001 (T28).   He allocated an impairment rating under Table 1 of the Impairment Tables of five points for the aortic valve prosthesis condition, based on restrictions in exertion and an inability to undertake heavy labour.  He made no allocation of impairment points under Table 6 (psychiatric impairment) for depression, finding the symptoms mild and Mr Lumsden under no medication or treatment.  Noting that Mr Lumsden worked "up to 30 hours per week as a truck driver and also 4 hours per week as a school bus driver" he considered him fit for his usual duties and any other duties not requiring heavy exertion.

7. On the basis of Dr Forssman's report (T28) and one presumes the evidence of Mr Lumsden's work practices, DSP was cancelled.  The only other medical evidence available to the Tribunal was a later medical certificate from Dr Nicholson on 27 August 2001, which reiterated that a depressive condition was evident, and stated that Mr Lumsden was fit for "part work only".  This seemingly did not influence the ARO when affirming the decision.
   ANALYSIS OF EVIDENCE AND FINDINGS

8. In summarising the Applicant's position, Ms Schuster submitted that only the aortic valve condition could be considered under the Impairment Tables, as the depressive condition was of a temporary nature, with intermittent reports failing to establish a consistent history, and no evidence of consistent treatment.   At the time of the primary decision to cancel DSP, which the Applicant submitted was the relevant time-line in which this matter might be considered, Mr Lumsden was not under any medication for this condition. 

9. Returning to the aortic valve condition, the Applicant acknowledged that only one report relating to an ECG or respiratory function test was available to the Tribunal, that being by Dr Hall in 1996 (T8, p52). It was submitted that the subjective assessment by Dr Forssman, based on the evidence of the Respondent, should be relied upon, and that this led to an assessed impairment rating of only five points. The Applicant further submitted that even were the Tribunal to find for an impairment rating of 20 points, Mr Lumsden would more than meet the 30 hours per week requirement vide section 94 of the Act, given that he had been so working, by his own evidence, for such periods.

10. The Respondent made no further submission in respect of issues that should be considered by the Tribunal, but expressed his frustration at the ongoing consideration of his eligibility for DSP, and in particular that the SSAT decision to set aside the original decision to cancel DSP, was now under review.   His frustration at this process was evident.     

11. At the outset, the Applicant conceded that Mr Lumsden met the conditions of section 94(1)(a) of the Act in respect of a physical, intellectual or psychiatric impairment, namely the condition associated with the aortic valve prosthesis condition, and the Tribunal so finds. Whether a further condition of depression exists is a matter for consideration.

12. Section 94(1)(b) of the Act requires a total impairment rating of 20 points or more. At the time DSP was granted, the Applicant acceded to an equivalent rating for the cardiac condition and anxiety and depression under the extant legislation and Impairment Tables. In June 2000, Dr Kamenyitsky of HSA assessed the total impairment rating at 20 points for the cardiac condition. One year later, Dr Forssman of HSA assessed the total impairment rating at five points only under Table 1 of the Impairment Tables, with no allocation for depression which he considered to be mild. As earlier noted, this was a subjective clinical assessment in the absence of an exercise ECG or respiratory function test, a procedure allowed for under the instructions for the use of Table 1. The only ECG report available is that referred to by Dr Hall in April 1996 (T8).

1. In respect of the cardiac condition, the Tribunal must also resort to a judgment based on the medical and non-medical history and the evidence of Mr Lumsden in respect of his work practices and his ability or otherwise to undertake home and non-work related duties and tasks.  In 2001, Dr Nicholson stated that Mr Lumsden "requires maintenance warfarin anticoagulant therapy.  Hence can only do light work for short periods".  But at question 2 of the TDR, he considers he can return to any full time work for at least 30 hours per week "now" (T27).  Dr Forssman records Mr Lumsden's statement that he becomes fatigued after a hard day's work and occasionally experiences shortness of breath on moderately heavy exertion, leading him to assess the impairment rating at five points relating to 6 – 7 METS.   The Tribunal is of the opinion that 6 – 7 METS overstates the capability of Mr Lumsden to undertake heavy work, and finds that 5 – 6 METS is a more reasonable and appropriate assessment of the effect of this condition, this leading to an assessed rating of 15 points.

2. In respect of a condition of an anxiety or depressive condition, Mr Lumsden showed frustration before the Tribunal, a frustration which seemingly relates to the original decision to cancel DSP, and following the setting aside of that decision by the SSAT, further review by this Tribunal.  Nonetheless, his response to the medical review in 2001 did not list anxiety or depression, and where such inference was drawn during the hearing, it was related to previous domestic difficulties.  Dr Nicholson diagnoses depression, but notes that Mr Lumsden is currently under no treatment or therapy.  Dr Forssman finds no impairment, symptoms being mild, and assesses impairment at nil points (T28).  The Tribunal accepts that in the past, Mr Lumsden was diagnosed with depression and medication was prescribed, but finds that on the available evidence, a nil impairment rating under Table 6 is appropriate.

3. The total impairment rating is therefore found by the Tribunal to be 15 points, and accordingly the requirement under section 94(1)(b), that a person must have an impairment rating of 20 points or more in order to qualify for DSP, has not been met. Accordingly, the decision of the SSAT must be set aside, and Mr Lumsden's DSP cancelled.

4. It behoves the Tribunal to comment on whether Mr Lumsden would meet the criteria under section 94(1)(c) of the Act in respect of a continuing inability to work. The Applicant contends that at the time of the original decision, Mr Lumsden was working for the tyre business, and as a bus driver in excess of 30 hours per week. On Mr Lumsden's own evidence, and on the evidence provided at Exhibit A1 by Bridgestone Tyre Centre, the Tribunal is reasonably satisfied that Mr Lumsden, at that time, (and indeed probably to the present), did not have a continuing inability to work as prescribed in section 94 of the Act. The fact that his employment at Bridgestone Tyre Centre is described as casual is of no relevance.

5. By his own admission, and as readily acknowledged by the Tribunal, Mr Lumsden is clearly a person with a strong work ethic. The Tribunal understands his forthright view that his medical condition could deteriorate to the detriment of his ability to continue working to the extent he has, and the comfort factor that he is given by the continuation of DSP payments which are adjusted to take account his work earnings. But the facts before the Tribunal are such that at the time of the original decision to cancel DSP, in July 2001, Mr Lumsden did not meet the total impairment rating of 20 points or more nor did he have a continuing inability to work. He thus did not meet the conditions of section 94 of the Act as regards eligibility for DSP.

6. Accordingly, the decision by the Social Security Appeals Tribunal of 14 February 2002 is set aside and in substitution therefor, the Tribunal determines that the Respondent was no longer eligible for DSP on 26 July 2001.    

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of REAR ADMIRAL A R HORTON AO, MEMBER

Signed:         .....................................................................................
  Associate

Date of Hearing  11 October 2002
Date of Decision  13 December 2002
Advocate for the Applicant      H Schuster
Respondent self-represented