Mathewson and Department of Family and Community Services

[2000] AATA 355

DECISION AND REASONS FOR DECISION [2000] AATA 355

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T1999/78

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      TREVOR NEIL MATHEWSON   
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr C P Webster (Senior Member)           

Date29 February 2000

PlaceLaunceston

Decision        The decision under review is affirmed.
  [Sgd C P Webster]
  Senior Member
CATCHWORDS

Social Security – disability allowance – impairment rating.

REASONS FOR DECISION

29 February 2000    Mr C P Webster (Senior Member)   

1. This is a statement of the reasons for decision of the Tribunal pursuant to s.43(2A) of the Administrative Appeals Tribunal Act 1975.

2. The decision that is under review is a decision made by an authorised review officer of 10 December 1998 which affirmed a decision of the Commonwealth Service Delivery Agency, Centrelink, of 26 October 1998.   The decision of the authorised review officer was again affirmed by the Social Security Appeals Tribunal (SSAT) on 21 April 1999.

3. The issue to be determined is whether or not the applicant has satisfied the criteria for a disability allowance.  The criteria requires the applicant to have a physical, intellectual or psychiatric impairment.   In this case that is conceded by the respondent.   The impairment has to be 20 points or more under the impairment tables and the impairment has to be such that the applicant has a continuing inability to work.

4. The applicant has given evidence as to the nature of his physical impairment, that is that it affects his limbs, which he says emanates from his back and that he has a broken wrist with subsequent re-occurrences of that partially united wrist.    The applicant has presented some additional medical evidence, which I have taken into evidence, and I have read all the documents in the T documents.   The applicant's doctor has not been called to give evidence and he has not been cross-examined.   I therefore simply take his letter at face value.

5. Dealing with the question of whether or not the applicant has 20 points or more under the impairment table, a number of doctors, namely all the doctors whose evidence was presented at the SSAT hearing stated that the applicant had an impairment of less than 20 points or 20 per cent.   The only medical report that suggests that the applicant has a greater impairment than 20 per cent is that of Dr. Ernst.   I agree with the Department's contention that Dr. Ernst has erroneously applied the wrong table.   I rely on the decision of the Administrative Appeals Tribunal of 4 May 1994 to which the respondent has referred, that is the decision of Bell, that says, in effect, that the more specific table should be applied before looking at the general tables of table 20 and 21.

6. I find that the appropriate tables to be applied in the applicant's case are tables 5 and table 3.   On Table 3 which relates to wrists I prefer the evidence of Dr. Jackson and the other doctors that were presented at the SSAT that the applicant has a nil per cent impairment relating to the wrist.    I do not accept the opinion of Dr. Ernst.   Dr. Ernst does not say why the applicant has a greater impairment than that, and I do not think that it is justified in his report to give the applicant a greater impairment for the wrist than that.   Dr. Ernst's opinion is contrary to the applicant's evidence that he is able to do the job of a storeman, albeit on a limited number of hours, that he is able to lift quite a bit although not the heaviest weights that you have lifted in the past.  That evidence is inconsistent with Dr. Ernst's opinion that the applicant now has a 5 per cent disablement.

7. I do not accept Dr. Ernst's opinion that the applicant's disability should be assessed on tables 20 and 21.    I agree that the back problem should be assessed on table 5.   I prefer the evidence of Dr. Andrew Jackson, who is the treating doctor, and has treated the applicant for a number of years, to that of Dr. Ernst.   I therefore affirm the decision under review.

   I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  29 February 2000
   Date of Decision  29 February 2000
   Counsel for the Applicant        Mr Mathewson appeared for himself.
   Solicitor for the Respondent    Ms L Miller for the Department