Mudford and Department of Community Services
[2000] AATA 262
•5 April 2000
DECISION AND REASONS FOR DECISION [2000] AATA 262
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1103
GENERAL ADMINISTRATIVE DIVISION )
Re MILTON MUDFORD
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date5 April 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd J D Campbell)
..............................................
Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension - review - cancellation - appeal - hypertension - gout - anxiety - ability to work.
Social Security Act 1991 - s 94, schedule 1B
REASONS FOR DECISION
Dr J D Campbell, Member
Mr Milton Mudford ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal, dated 17 September 1997, which affirmed the decision of an Authorised Review Officer of the Department of Family and Community Services dated 15 July 1997. This latter decision affirmed the decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 27 May 1997 to cancel the Applicant's Disability Support Pension.
A hearing was held in Newcastle on 15 December 1999, at which the Applicant was self-represented and the Respondent was represented by Ms Mantaring, an advocate from the Administrative Law Section of Centrelink.
The following written material was placed in evidence before the Tribunal:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Respondent's Statement of Facts and Contentions dated 9 September 1999 T1 – T15 p1-66 Exhibit R1
ISSUES
The following matters were considered to be the pertinent issues:
(a)whether the Applicant has a physical, intellectual or psychiatric impairment and whether, when these impairments are assessed under the tables for the assessment of work-related impairment for disability support pension ("the Impairment tables") in Schedule 1Bof the Social Security Act 1991, the combined assessment is 20% or more; and
(b)whether the Applicant has a continuing ability to work because:
(i)the impairment itself prevents the Applicant from doing any work for at least 30 hours per week at award wages or above within the next two years; and either
(ii)the impairment of itself is sufficient to prevent the Applicant from undertaking educational or vocational training or on-the-job training during the next two years; or
(iii)the impairment of itself does not prevent the Applicant from undertaking educational or vocational training, or on-the-job training, but such training (because of the impairment) is unlikely to enable the Applicant to do any work within the next two years.
The relevant legislation is the Social Security Act 1991 ("the Act") and, in particular, subsections 94(1), (2), (3) (4) and (5) and the Schedule 1B impairment tables.
BACKGROUNDThe Applicant was granted an Invalid Pension on 15 March 1990 (Exhibit R1 Annexure A), although a medical impairment assessment would appear to have been received on 23 April 1990 (T3). A review of the Applicant's Disability Support Pension commenced in March 1997 (T4, T5) with an Australian Government Health Service report being completed on 14 May 1997 (T6, p45). A decision to cancel the Applicant's Disability Support Pension was forwarded to the Applicant on 27 May 1997 on the ground that the Applicant could be retrained for other work (T8). A reconsideration was undertaken on 29 May 1997 (T9) and a further review on 15 July 1997 (T14), both of which affirmed that the Applicant did not have a continuing inability to work.
APPLICANT'S EVIDENCEThe Applicant informed the Tribunal that he was born on 27 July 1945 and currently lives in a Housing Commission flat at Booragul. He left school after completing his Intermediate Certificate and commenced as an apprentice bricklayer with BHP, where he remained for six months, after which he joined the State Railways. The Applicant told the Tribunal that he worked in this employment for ten years, undertaking a variety of jobs including junior station assistant, goods yard worker, crane chaser and driving fork-lifts. After this, the Applicant stated he was employed by State Dockyards for eight years as a crane driver, followed by employment with the State Electricity Commission at Wangi Power Station for five to six years as a cleaner/labourer, and five years at Eraring Power Station as a cleaner/front-end loader driver. The Applicant told the Tribunal that in 1988, he took redundancy as he was ill and that he has not been in employment since that time.
The Applicant informed the Tribunal that at the time of his redundancy he was married, that over the next four years he lived on his redundancy payments and that during this period he separated from his wife and lived in a campervan for two and a half years before obtaining his current Housing Commission accommodation. Further, the Applicant stated that he applied for and was granted Disability Support Pension in 1990, and that he understood that, because of restrictions on heavy lifting and bending, he would not be able to return to his previous occupations. Further, with regards to retraining and rehabilitation, the Applicant stated that he had heard nothing about this, other than it being mentioned at an earlier stage.
The Applicant stated that he was angry when his Disability Support Pension was cancelled and that following the cancellation he had been transferred to Newstart Allowance, requiring him to obtain medical certificates over the last two and a half years, and a loss of concessions for travel, telephone and medical.
The Applicant described his impairments to the Tribunal in the following manner:
(i)Gout:
Commenced in mid seventies, while working at State Dockyards. Experiences attacks of acute gout many times a year for which he used Indocid suppositories. In answer to questions in cross-examination, the Applicant stated that the acute attacks occurred on an average of one a month and stopped him from working for a few days. Further, the Applicant stated that he takes Progout, 1 tablet a day, that he experiences left ankle swelling with acute attacks and that oranges and stress appear to precipitate acute attacks;
(ii)Hypertension:
Takes Dapa-Tabs, 1 per day, – controlled, although has not seen a specialist in the last couple of years;
(iii)Pain:
Complains of chronic pain in neck, shoulders and all joints, with pain in both ankles and right knee all the time. The pain is in the back of his neck, with pain in both shoulders on elevation of his arms. He suffers also from pain in his lower back and experiences headaches from time to time. Further, he experiences pain on both sides of his abdomen, and he has an incisional hernia which does not cause him problems;
(iv)Anxiety/Stress:
Complains of dizziness, extreme weakness, fatigue and sleepiness. Experiences interrupted sleep. Experiences stomach distress with alternating periods of diarrhoea and constipation. Also states that he becomes emotionally upset at times.
In further general comments the Applicant stated that he has a debt from gambling which is currently causing difficulty, that he enjoys a schooner or two, does his own cooking and laundry but is not keen on cleaning. Further, the Applicant stated that he does not own a car, visits the club and makes use of the courtesy bus. He lays down for most of the day, with his sister taking him shopping once a week and he eats reasonably well.
Further the Applicant reiterated that he has no real problems with walking, apart from the pain which comes on after some 300-400 yards, causing him to sit with his feet up for most of the day, when not supine. As a consequence of his pain, he had to stop playing tennis and golf some three to four years ago.
As a consequence of his impairments, the Applicant could foresee difficulties arising in a work situation, because he would need to sit and/or lay down from time to time. Further, he could foresee difficulties with retraining, as he is likely to have acute episodes of gout from time to time. In further comment, the Applicant indicated that Dr Shah had been his attending general practitioner for 20 years; that any work is not likely to pay any more than he gets from the pension and that his difficulties with pain, with bending and heavy lifting and with walking up and down stairs, would limit him to sitting down and doing light work. In acknowledging any capacity to work the Applicant, while stating that he would attempt to undertake light assembly work, felt that he would be only able to do this for two hours before lying down for three to four hours.
MEDICAL EVIDENCEThe Applicant, at medical examination on 23 April 1990, was noted to have ceased work in 1988 and to have a medical history of:
(a)gouty arthritis for 15 years, affecting knees, ankles and shoulders. Occurred once every two to three weeks, was able to climb stairs, stand for half an hour and walk for about 500 metres. Treated with Zyloprim and Indocid suppositories;
(b)high blood pressure for ten years, treated with Betaloc; and
(c)small incisional hernia following an earlier operation for gall bladder removal. Also complains of an anal fissure.
Examination at that time revealed loss of movement in both knees, upper limb dysfunction associated with pain with movement of shoulders and difficulty with handling of heavy objects. Further, the Applicant was considered to have controlled hypertension and mild symptoms from his incisional hernia. Combined assessment of impairments was considered to be 25%. He "may be capable of semi-sedentary work" (T3, p18).
In a report dated 25 March 1997 (T5) Dr Shah, the treating general practitioner, described the Applicant's impairments as:
(a)Chronic Gout - unable to do prolonged standing and walking. Treated with Progout and Indocid suppositories; and
(b)Hypertension - associated with stress and headaches. Treated with Dapa-Tabs and Solprin.
In commenting upon the Applicant's ability to work, Dr Shah concluded that he was unfit for any other work for at least 30 hours per week, or for part-time work, for the next two years.
Dr So, an Australian Government Health Service Medical Officer, examined the Applicant on 14 May 1997. Dr So recorded the Applicant's impairments as:
(a)Chronic gout, with severe attack once every two months. The attack lasts for a week despite using Indocid suppositories. Affects the Applicant more than 41 days per year. Unable to stand for long because of pain in left ankle;
(b)Hypertension – controlled; and
(c)Bowel disease – mild and persistent symptoms.
Dr So considered the Applicant to have a combined impairment rating of 20%, that the Applicant was not fit to undertake his usual work of crane driver/cleaner, but that he was fit for light skilled or semi-skilled sedentary/semi-sedentary duties only. Further, it was Dr So's opinion that the Applicant's impairments, while not preventing him from undertaking education or vocational training within the next two years, do affect his participation in such because of the Applicant's ability to concentrate for more than 15 minutes and his ability to cope with the stress of training. In Dr So's opinion, the Applicant will require a vocational rehabilitation program to return to either full and/or part-time work (T6).
CONSIDERATION AND FINDINGSIt was conceded by the Respondent that the Applicant has a combined impairment rating of 20% for the impairments of chronic gouty arthritis, controlled hypertension, bowel disorder and stress and anxiety. The Tribunal accepts this concession and finds that the Applicant has a combined impairment assessment under the Schedule 1B Impairment Tables of 20% - this being consistent with the relevant medical evidence (T6).
In considering the matter further, the Tribunal notes the following relevant subsections of the Act, as relevant at the time of the original decision:
"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% or more under the Impairment Tables; and
(c)the person has a continuing inability to work; and
…
94(2)A person has a continuing inability to work if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing:
(i) the person's usual work; and
(ii) work for which the person is currently skilled;
for at least 2 years; and
(b)either:
(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training during the next 2 years; or
(ii) the person's impairment does not prevent the person from undertaking educational or vocational training but such training is not likely to equip the person, within the next 2 years, to do work for which the person is currently skilled.
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 work in the person's locally accessible labour market (unless subsection (4) applies to the person); or
(b)the availability to the person of educational or vocational training.
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 equip 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;
"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."
The Tribunal, in considering the relevant legislation, notes that the Applicant has the impairments of chronic gout with arthritis, hypertension, bowel disorder and a stress anxiety syndrome, and so finds that these impairments are present and, as a consequence, the Applicant satisfies subsection 94(1)(a) of the Act in that these disabilities are physical and/or psychiatric impairments. Further the Tribunal finds that the Applicant satisfies subsection 94(1)(b) of the Act as the combined impairment assessment is 20%.
In considering whether the Applicant has a continuing inability to work, the Tribunal notes the opinion of Dr Shah, the Applicant's treating general practitioner, where he states that the Applicant has two impairments, namely chronic gout and controlled hypertension. Dr Shah is noted as stating that the Applicant cannot do prolonged standing and walking and that his hypertension causes stress and headaches. As a result of his statements, the Tribunal observes that Dr Shah concludes that the Applicant is unable to do any full or part-time work within the next two years. The Tribunal, while noting the totality of the opinion, expresses concern at the absence of written clinical details as to the severity and consequences of the Applicant's impairments that led Dr Shah to express his ultimate conclusion – that is, the Applicant's inability to work within the next two years.
The further medical examination and opinion detailed and expressed respectively by Dr So is observed by the Tribunal to amplify and qualify clinical issues and opinion respectively, which in turn allows the Tribunal to more easily understand the end point opinion expressed by Dr So – namely that the Applicant, with the assistance of a vocational rehabilitation program, will be able to undertake work for at least 30 hours per week at or above award wages in the work categories of light skilled or semi-skilled, provided it is of a sedentary or semi-sedentary nature.
The Tribunal, in noting that the Applicant was 52 years old at the time of the original decision, finds that the Applicant's impairments did at that time cause difficulties for the Applicant in prolonged sitting and walking, and further interferred with his ability to carry heavy objects. The Tribunal concludes that with these impairments, the Applicant is unable to return to his previous occupations as a crane driver/cleaner.
Despite the Applicant's inability to return to his previous employment categories, the Tribunal, while noting that the Applicant has expressed a willingness to be retrained, concludes that the restrictions as outlined by both Dr Shah and Dr So do not prevent the Applicant from undertaking educational, vocational or on-the-job training now or within the next two years. The Tribunal, in so finding, has placed weight on the nature of and consequences of his impairments as stated by the Applicant, in part on the consequences (ie restrictions) arising as detailed by Dr Shah and, importantly, on the clinical information detailed and medical opinions provided by Dr So. The Tribunal is also mindful that the Applicant's impairments may affect participation in such training programs, if such restrictions outlined earlier, and which arise as a consequence of his impairments, are not respected in the conduct of any such training program. As a consequence of the Tribunal's finding that the Applicant's impairments do not prevent him from participating in an educational, vocational or on-the-job training program during the next two years, the Tribunal concludes that the Applicant does not satisfy subsection 94(2)(b)(i). Further, the Tribunal notes that there is only minimalist inferential medical evidence from Dr Shah to suggest that, despite undertaking such training, such training is unlikely, because of the impairments, to enable the Applicant to work within the next two years. The Tribunal, in preferring the clearly stated and reasoned opinions of Dr So, concludes that the Applicant, having undertaken such training programs will not, because of his impairments, be prevented from undertaking work within the next two years. As a consequence, the Tribunal finds that the Applicant does not satisfy subsection 94(2)(b)(ii) of the Act.
It is clear to the Tribunal that the medical evidence relating to the Applicant's inability to work within the next two years is contradictory. It is clear that Dr Shah is firmly of a particular view that the Applicant, because of his impairments, is unable to work within the next two years. The Tribunal, having already expressed concerns relating to the lack of clinical detail and the absence of any explanatory notes or reasoning, is unable to accept the opinion given by Dr Shah as a basis upon which the Tribunal could reasonably arrive at a conclusion. The Tribunal, while noting the difficulties inherent in Dr Shah's opinion, prefers the opinion of Dr So in that, while expressing the limitations and restrictions imposed as a consequence of the Applicant's impairments, he is able to detail, amplify and explain as to how he has arrived at his opinion. It is for these reasons that the Tribunal accepts the opinion of Dr So and accordingly the Tribunal, acknowledging that Dr So expresses the view that at the relevant time the Applicant (recognising the impairments that exist) is able to undertake light skilled or semi-skilled work activities at 30 hours per week on a sedentary or semi-sedentary nature, finds that the Applicant does not have a continuing inability to work and accordingly does not satisfy subsection 94(2)(a).
As a consequence of the Tribunal's findings that the Applicant has failed to satisfy subsections 94(2)(a) and 94(2)(b)(i) and (ii) of the Act, the Tribunal finds that the Applicant has failed to satisfy subsection 94(1)(c) of the Act, and accordingly does not satisfy the criteria for the payment of Disability Support Pension.
DETERMINATION
The Tribunal affirms the decision under review.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 15 December 1999
Date of Decision 5 April 2000
Solicitor for Applicant Applicant was self-represented
Advocate for the Respondent Ms S Mantaring, Centrelink
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