Murphy and Department of Family and Community Services - [2001] AATA 544

DECISION AND REASONS FOR DECISION [2001] AATA 544

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/726

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

DECISION

Tribunal Mr K L Beddoe (Senior Member) Miss AM Brennan, AM (Member) Dr KP Kennedy, OBE (Member)

Date18 June 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member
Decision No: 544/2001
CATCHWORDS
SOCIAL SECURITY – disability support pension- motor vehicle accident – injury to ankle and leg – whether alcohol and marijuana abuse present at relevant time- whether incapacity to work
Social Security Act 1991 s 94, 100, 106

REASONS FOR DECISION

18 June 2001 Mr K L Beddoe (Senior Member) Miss AM Brennan, AM (Member) Dr KP Kennedy, OBE (Member)

In December 1995 the applicant made a claim for a Disability Support Pension. That claim was refused and the applicant sought both internal review and review by the Social Security Appeals Tribunal ("SSAT"). The SSAT affirmed the decision by a decision dated 24 July 1996. The applicant then applied for review in this Tribunal. The decision in this Tribunal was the subject of an appeal to the Federal Court which remitted the matter for rehearing by a Tribunal differently constituted.
Section 94 of the Social Security Act 1991 ("the Act") sets out the primary qualifications required to be satisfied for payment of a disability support pension. In particular 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)because of the impairment the person has a continuing inability to work.
Section 94(2) reads as follows:
"(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."

The relevant impairment tables were contained in Schedule 1B of the Act (subsequently amended).
Section 106(1) of the Act provides that a person seeking to be granted a disability support pension must make a proper claim for that pension.
Section 106(2) provides that for the purposes of section 106(1) where such a claim is made but at the time of claim it cannot be granted because the person is not qualified for the disability support pension then subject to section 100(3) the claim is taken not to have been made.
Section 100(3) has the effect of allowing a claimant for disability support pension, who is not qualified for the pension on the day of the claim, to achieve qualification within 3 months of making the claim and the provisional commencement day is determined accordingly.
At the re-hearing the applicant conducted his own case and Mr Kanowski represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents. Further documents were tendered and marked as exhibits. Oral evidence was given by the applicant. The Tribunal has confined its consideration to the material put before it and the submissions of the parties. The earlier decision of the Tribunal set aside by the Federal Court has not been taken into consideration.
We make the following findings of fact. Document T10 is a copy of the applicant's claim for disability support pension dated 13 December 1995. The applicant was born 16 November 1963. Prior to making the claim the applicant had been in receipt of sickness allowance in respect of the left knee and ankle problems.
The applicant suffered extensive injuries in a motor vehicle accident. As a consequence of the accident he has been unable to pursue his previous occupation as labourer/rigger. The accident occurred in April 1994 and resulted in hospitalisation from 9 April 1994 to 27 April 1994.
The applicant told the SSAT that he abused alcohol. That was the first mention in his file. Before us he confirmed that he abused alcohol and also said that he used marijuana. He said he told Dr Devlin about alcohol abuse in 1997.
In evidence before us the applicant referred to the motor vehicle accident in 1994 which is not in dispute and also an accident in 1981 when he was employed by the Wheat Board. It is not clear to us that there was any long term consequence from the 1981 accident. Clearly there has been long term consequences from the 1994 accident.
The applicant has been attending a psychiatrist in recent times (3-4 months before hearing) and is on medication for a psychological condition which is not clear to us.
The SSAT reported that the applicant consumed a carton of beer per day. Before us he said he consumed two cartons of beer per day. He said he gets $342 per fortnight but did not explain how he acquired the quantities of beer said to be consumed. Because he lives with his parents he has minimal personal expenditure. He says that consumption of alcohol is voluntary because he can stop at any time but also said that he has attended Alcoholics Anonymous but has no interest in ceasing to use alcohol. He also said he has no interest in seeking work.
He grows marijuana on public land for his own use and for use by others but asserts that he gives it to others for no charge.
He admitted that recent liver function tests had been pretty good.
The Medical Evidence
Document T13 is an Australian Government Health Service Medical Officer Report by Dr Ephraums dated 19 March 1996.
Dr Ephraums reported that the applicant was involved in a motor vehicle accident in April 1994 and sustained fractures to the tibia at the left ankle along with other lacerations. He reported that the applicant complained of persisting pain of the left ankle and knee with pain being worse in cold weather.
Dr Ephraums reported a slight limp. There was full range of movement in the ankle and no swelling or deformity of either knee. There was a loss of about 20% in left knee movements. Dr Ephraums reported that notwithstanding the applicant's complaints there was little to find by way of clinical examination. He concluded the applicant was precluded from strenuous duties but fit to undertake sedentary or semi sedentary duties, provided he was able to change positions and move about. He was also fit to undertake retraining for light skilled work.
Document T11 is a summary of hospital admission by a Medical Officer in relation to the applicant's hospitalisation following the motor vehicle accident. It is clear that the left ankle was seriously damaged in the accident and the applicant also suffered severe lacerations.
The applicant says and we accept that the applicant also contracted Golden Staph while in hospital.
Dr Boulton, orthopaedic surgeon, prepared a short report dated 2 April 1996 for the Department of Social Security. He reports that the Golden Staph infection occurred in both the knee injury and the ankle injury. The left knee showed signs of obvious posterior cruciate ligament rupture and also may have some damage to the anterior cruciate ligament. Dr Boulton's report was on the basis of having last seen the applicant in July 1995.
The applicant's general practitioner since 1987, Dr McMahon, gave the respondent a treating doctor's report dated 11 August 2000 (Exhibit 2). She diagnosed depression which she said was long term, deteriorating, constant and treated with Zoloft.
Dr McMahon also diagnosed "Post Traumatic L knee and L ankle, from motor vehicle accident in 1994, described as long term, stable, constant and treated with Panadol." Dr McMahon described the applicant's usual job as fisherman which is one of the two occupations noted by Dr Ephraums.
Dr McMahon described the applicant as having plenty of ability, noted that he had not been in the workforce since 1994 but was of the opinion that he could return to work in 6-12 months (Date of last examination was 11 August 2000.)
Exhibit 1 is a copy of an unsigned report by Dr Devlin who we understand to be a general practitioner. Dr Devlin's report is dated 12 July 1997 and addressed to the Welfare Rights Centre. She reports that the applicant attended her practice on three occasions from 13 December 1995, the relevance of that date being apparently the date of claim for Disability Support Pension. We do not know what questions were put to Dr Devlin by the Welfare Rights Centre.
Dr Devlin saw the applicant on 18 October 1996 for a cigarette burn in his right eye. She was of the opinion that the condition was not present in December 1995.
On 24 April 1997 she diagnosed cruciate ligament damage of the left knee. She referred the applicant to Prince Charles Hospital for assessment but does not report the outcome of this assessment, if it was done. The applicant did not tell us he had been to Prince Charles Hospital.
Dr Devlin reviewed the applicant again on 10 July 1997 with the left knee problem persisting. She says nothing about an assessment by the hospital. She diagnosed Post-Traumatic Arthralgia Left Ankle secondary to the original compound fracture which she said would have been present in December 1995.
The applicant also complained to Dr Devlin of neck pain which he attributed to the motor vehicle accident in 1994. Dr Devlin diagnosed referred pain of cervical origin, an X-Ray ordered and referral to Prince Charles Hospital.
The applicant also gave a history of injury to the right knee in 1987 which was subsequently diagnosed by Dr Morris, Orthopaedic Surgeon, as traumatic chondromalacia Patellae in respect of which an arthroscopy was performed in 1968. Dr Devlin could only find slight softening of cartilage covering the patella. She thought this condition was present in December 1995.
In relation to the right eye injury, which was still causing problems, the applicant was referred to an ophthalmologist for assessment.
At this consultation the applicant told Dr Devlin that he was consuming 30 stubbies per day. She made no diagnosis pointing out this was the first reference to alcohol consumption and further assessment was needed.
She thought the applicant was incapable of working 30 hours per week. She thought he could be retrained for sedentary work but the alcohol abuse would interfere with any retraining.
Consideration
We have taken time to consider this matter because we have considerable difficulty with the applicant's evidence before us and the history given to Dr Devlin on the three occasions she saw him. Dr Devlin's record of the applicant's history is inconsistent with Dr McMahon's brief but illuminating report.
There seems to us to have been an evolving changing of the facts as the matter of qualification for disability support pension has progressed slowly to the point where we have to make a decision. There are so many loose ends in this matter that it looks like a shaggy dog. An example is the three referrals for specialist assessment by Dr Devlin which either did not take place or we have not been told about the results of the assessments.
Regrettably we have come to the conclusion that the applicant is an unreliable historian.
The two doctor's reports that appear not to have been affected by this unreliability are the reports of Dr Ephraums and Dr McMahon. Those reports were made over four years apart but they are internally consistent in relation to the left leg injuries.
Accepting, as we do, that the applicant's left leg injuries preclude him from doing strenuous work such as a fisherman or rigger/labourer, we are satisfied that the applicant had the capacity, both physical and mental, to do semi sedentary and sedentary work at December 1995 and the three months thereafter.
We are not satisfied that alcohol abuse and use of marijuana were relevant issues in December 1995. The applicant told us conflicting stories in relation to alcohol use, one that he could stop using at any time, but on the other hand that he had attended Alcoholics Anonymous. In any event he said he was content to continue drinking alcohol. While we accept that he now uses and abuses alcohol and marijuana we are unable to make any finding about such use in the period December 1995 to March 1996.
We are satisfied that as at December 1995 the only conditions which can be said to satisfy the requirement that it be a fully documented diagnosed condition which had been investigated, treated and stabilised and is considered permanent were the conditions described by Dr McMahon as Post Traumatic Left knee and Left ankle. We would add that those conditions were complicated by Golden Staph infection.
The lower limb impairment assessment must be made relying on an unreliable historian. However we are satisfied, doing the best we can in the circumstances, that the applicant should be assessed at 20% impairment rating as at December 1995. Dr Ephraums assessed at 15% but failed to give any weight to the applicant being limited in distance to about 100 metres – a fact we think, not inconsistent with Dr Ephraums finding of standing tolerance of five minutes.
In the light of Dr McMahon's report, we are satisfied that the applicant's impairment was probably of itself sufficient to prevent the applicant from doing his usual work at December 1995. However we are not satisfied that the applicant's impairment was, of itself, sufficient to prevent him undertaking educational or vocational training over the next two years with a view to semi-sedentary or sedentary employment. That was, in our view, clearly within his capacity at that time and we so find. It follows we cannot be satisfied there was a continuing inability to work as defined. Section 94 is not satisfied.
For these reasons the decision under review will be affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Miss AM Brennan, AM (Member) and Dr KP Kennedy, OBE (Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  17 October 2000
Date of Decision  18 June 2001
Applicant  In Person
Respondent  Mr Kanowski, Advocate