Re Bantick and Secretary, Department of Family and Community Services

[2003] AATA 472

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 472

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/14

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PAUL SIMON BANTICK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date23 May 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Social Security - disability pension - cancellation - review - SSAT - impairment - medical assessment - impairment rating - inability to work.

Legislation

Social Security Act 1991 – s94

Schedule 1B – Tables for the Assessment of Work-Related Impairment for Disability Support Pension, including Notes to Schedules of the Social Security Act 1991.

Authorities

Francis and Secretary, Department of Family and Community Services (1999) AATA 194 (14 December 1999)

REASONS FOR DECISION

23 May 2003	Associate Professor B W Davis AM (Part-time Member)
The Application

1.      The applicant, Paul Simon Bantick, seeks review of a decision made by the Social Security Appeals Tribunal (SSAT) dated 14 February 2002, affirming a decision made by a Centrelink officer on 6 November 2001, to stop payment of Mr Bantick’s disability support pension.

The Issues

2.      The issues to be determined by the Tribunal are:

(a)Does Paul Bantick satisfy s94(1)(a) of the Social Security Act 1991 (“the Act”)? Does his impairment attract a rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act?

(b)Does Paul Bantick satisfy s94(1)(c) of the Act? Does he have a continuing inability to work?

Concession

3. The respondent (Department of Family and Community Services) concedes that Paul Bantick satisfies subsection 94(1)(a) of the Act, in that he has gunshot wounds to his right leg and hip and suffers from painful and injured hands.

Relevant Legislation

4. Section 94 of the Act and s80 of the Social Security Administration Act 1999. Schedule 1B of the Act “Tables for Assessment of Work-Related Impairment for Disability Support Pension, including introductory Notes. Note that a person is qualified for disability support pension if he or she meets the criteria specified in s94 of the Act.

“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;

…”.

The relevant Impairment Tables for Mr Bantick’s case are:

Table 3         -         Upper Limb Function

Table 4          -          Function of Lower Limbs

Table 20       -          Miscellaneous … including chronic fatigue or pain.

Background

5.      The applicant was granted disability support pension from 11 July 1996, on the basis he was suffering totally disabling chronic pain acquired from gunshot wounds and a motor vehicle accident.

6.      The applicant’s entitlement to disability support pension was medically reviewed in 2001, and a decision made by the Department on 6 November 2001 that the applicant no longer medically qualified for disability support pension and the pension should be cancelled from 13 December 2001.

7.      The Medical Assessment Report of Dr Walker of Health Services Australia, dated 1 November 2001 assessed the applicant’s impairment rating at nil points and found him fit for full-time work within restrictions outlined in the assessment.   The treating doctor’s report of Dr Chow, dated 19 September 2001 stated the applicant was fit for full-time work.

8.      On 12 November 2001, Mr Bantick requested a review of the decision to cancel his disability support pension.   On the same day the decision was reviewed and affirmed by the original decision-maker.   On 3 December 2001 the decision was further reviewed and affirmed by an authorised review officer.

9.      Mr Bantick then appealed to the SSAT and on 14 February 2002 the SSAT reviewed and affirmed the decision.   The applicant’s disability support pension was cancelled on 4 April 2002.   Mr Bantick then applied for review by the Administrative Appeals Tribunal.

Tribunal Hearing

10.     The Tribunal hearing was conducted in Hobart on 2 May 2003.   Mr Hamish Locke of the Hobart Community Legal Service appeared for the applicant and Ms Rhonda Bradley for the respondent.    The applicant, Mr Paul Simon Bantick was present, but not called as witness by either party.

11. Counsel for the applicant submitted a number of facts and contentions, arguing that Mr Bantick’s case met all criteria of s94(1)(a), (b) and (c) of the Act, in respect of disabilities and inability to work, thus qualifying him for continuation of a disability support pension. Counsel drew attention to evidence by a number of medical practitioners, but stressed that the evidence of Mr Binns, an orthopaedic specialist, should be preferred over that of general practitioners. Mr Binns had indicated there was little prospect of Mr Bantick achieving gainful employment, given his disabilities and long period out of the workforce.

12. Counsel for the respondent (DFCS) also made reference to detailed medical evidence, but argued that in some instances there was agreement and an overall indication Mr Bantick’s disabilities ranked nil or low on the Impairment Tables at the time of medical review in late 2001. It was incorrect to suggest an inability to work, when evidence from Dr Walker, Dr Chow and to some extent Dr Binns, indicated some employment activities were feasible. As far as Mr Bantick’s painful hands were concerned, the situation had not been fully diagnosed or stabilised, thus the Impairment Tables could not be applied until a permanent situation was achieved. The respondent claimed that Mr Bantick’s condition did not satisfy the conditions of s94(1)(b) and (c) of the Act, thus cancellation of the disability support pension was appropriate.

Medical Evidence

13.     Mr Bantick was granted disability support pension (DSP) from 11 July 1996 on the basis he was suffering totally chronic pain acquired from gunshot wounds to his right leg and hip (1993) and whiplash injury from a motor vehicle accident (1995).   He had sustained injuries to both hands as a child, including the loss of two fingers of his right hand.   He was awarded 20 points disability rating under Table 20 of the Impairment Tables then in force (the latter were revised in 1997).

14.     When a medical review was conducted in September 2001, his treating doctor (Dr Chow) diagnosed the applicant’s situation as follows:

·     Condition 1 – Shot in right leg and hip.   Clinical feature of leg cramp, but no further surgery required.

·     Condition 2 – Painful hands, but no formal diagnosis.

Dr Chow considered both conditions likely to persist for more than two years, but judged Mr Bantick fit for full-time work.

15.     Dr Walker of Health Services Australia in his report dated 1 November 2001 assessed the applicant’s condition as follows:

·     Condition 1 – Gunshot wounds right leg and hip.   Some shot removed but bullet remains in hip.   Constant pain for which he takes 8 Panamax daily and intermittently large amounts of beer and marijuana.   Can walk 1 kilometre.

·     Condition 2 – Painful hands.   Reports cramping and stiffness of both hands.   On examination eczema on both hands, no swelling or synovitis.  No deformity, other than loss of two fingers and range of movement and grip were normal.   Temporary condition, not fully diagnosed, treated or stabilised.

·     Condition 3 – No evidence of depressive or psychotic disorder, but not in treating doctor’s report.

Dr Walker considered Mr Bantick fit for work, but within limits identified in the assessment, noting he would need rest periods and could only operate on certain types of tasks.

16.     Dr Walker assigned the following impairment ratings:

·     Condition 1 – Table 4 – nil.   Normal range of movement and gait.

·     Condition 2 – Table 3.  Temporary condition not fully diagnosed, treated or stabilised.   No impairment rating assigned.

·     Condition 3 -  No condition to rate and denied by the applicant.

Overall the combination was nil, thus Mr Bantick did not meet the criteria specified in s94(1)(b) of the Act, and would not qualify for disability support pension.

17.     These assessments were further evaluated by the SSAT during its hearing on 14 February 2002.   The Tribunal also assessed the severity of Mr Bantick’s pain, using Table 20 of the medical impairment tables.    The Tribunal considered the pain was moderate to severe, but would not prevent many everyday activities.   Self-care and independence were retained, but there would be some impact on ability to work.   The Tribunal rated the pain disability as 15 points on Table 20.   This did not meet the threshold test of 20 points or more required, in order to qualify for disability support pension.

18.     Following cancellation of the pension from 4 April 2002, Mr Bantick sought independent medical advice from Mr P Binns, an orthopaedic specialist (reports dated 26 April 2002 and 15 November 2002) and from rehabilitation consultants Ms Anne Nalder (report dated 25 October 2002) and Ms Leanne Cannon (report dated 28 November 2002).

19.     Mr Binns assessment, dated 26 April 2002, stated:

“I can only assess him (Mr Bantick) from the orthopaedic point of view … .  I would think he has a residual disability of the order of five per cent in each hand and of the order of five to ten per cent for his right lower limb.   I have read Dr Smith’s report of 25 June 1996 and this probably assesses him pretty accurately.   … I note he has not done any work some six years how and, this being so, the chance of ever getting back to any form of gainful employment is nil.”

20.     In a further report dated 15 November 2002, Mr Binns repeated his disability percentage figures and again stressed he could only assess Mr Bantick from an orthopaedic point of view and certainly not from a psychiatric or motivational point of view.

21.     Mr Binns made no specific reference to Impairment Tables or the reports of Dr Chow or Dr Walker of late 1991.

22.     The rehabilitation assessment reports of Ms Anne Nalder, dated 25 October 2002 and Ms Leanne Cannon, dated 28 November 2002 tend to confirm that only a limited range of vocational prospects exist for Mr Bantick, within the light physical demand category.   This might change if pain levels could be reduced.   They concluded Mr Bantick could not work or be retrained for work in the foreseeable future.   He could only operate for a few hours at his own pace and could not work at a level that open employment requires.

Analysis

23.     The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent.

24. In the current instance the case centres around s94 of the Act and the accompanying Schedule 1B Medical Impairment Tables dealing with criteria for disability support pension. In essence the issue is whether Mr Bantick’s disabilities are of such a nature and extent that they rate 20 points or more in the Impairment Tables and meet other provisions of the Act.

25.     In reviewing Mr Bantick’s medical situation in September 1991, Dr Chow noted leg cramps arising from Condition 1 – gunshot wounds to right hip and leg, but made no further diagnosis, apart from judging Mr Bantick was fit to resume full-time work.   Dr Walker’s assessment dated 1 November 2001 also rated Mr Bantick fit for work, with a nil impairment rating for the gunshot wounds to hip and right leg.   Dr Walker considered Mr Bantick to have a normal range of movement and gait, capable of walking at least a kilometre.

26.     Mr Binns, the orthopaedic surgeon, differed on this point, stating that Mr Bantick had a disability rating of the order of five to ten points, but this assessment came after the medical review period and a decision had already been made to cancel Mr Bantick’s disability support pension.

27. The Tribunal notes the above evidence and concludes that although it is likely Mr Bantick suffers some disability from his gunshot wounds, there is no evidence this would result in an impairment rating exceeding ten points and the reviewing medical practitioner, Dr Walker, rated it as nil impairment. On this basis, taken in isolation, Mr Bantick’s impairment rating would not meet the 20 points plus impairment criterion required by s94(1)(b) for award of a disability support pension. As previously noted, it is conceded that Mr Bantick’s injuries meet the provisions of s94(1)(a), i.e. there is a genuine physical, intellectual or psychiatric impairment.

28.     Turning to the matter of Condition 2 – Mr Bantick’s painful hands, neither Dr Chow or Dr Walker made any judgment, regarding the situation as a temporary one, which had not been fully diagnosed, treated or stabilised.   Dr Walker noted that range of movement and grip were normal.   Mr Binns later assessed the situation as one where impairment was of the order of five percent in each hand, but noted a full range of movements, apart from a little stiffness and some altered sensation in the left hand.   Counsel for the respondent (DFCS) queried the validity of such evidence when the applicant had not seen a specialist or rheumatologist or had tests for arthritis.

29. The Tribunal notes that the Introduction to Schedule 1B of the Act dealing with Impairment Tables only permits a rating after comprehensive history and examination of any claimed disability. For a rating to be assigned the condition must be fully documented, diagnosed, treated and stabilised. The condition must also be permanent, persisting for the foreseeable future, which is taken to extend beyond two years. The Tribunal concludes that Dr Chow and Dr Walker were correct in not assigning an impairment rating for painful hands, as the situation had not been fully investigated, treated and stabilised.

30. Combining the impairment rating for Conditions 1 and 2, the points rating is zero if Dr Walker’s analysis is accepted and of a maximum of 5 to 10 points if Mr Binns’ view is accepted, the latter applying only to the hip and leg situation, with hands excluded. In neither case do the ratings meet the criteria identified in s94(1)(b) of the Act, thus Mr Bantick does not qualify for continuation of disability support pension.

31.     The SSAT adopted an alternative approach, namely the application of Table 20 in the Impairment Tables, which deals with chronic pain.   After comprehensive assessment the SSAT rate Mr Bantick’s disability as 15 points, which again fails to meet the criteria for allocation of pension.   The AAT Tribunal has reviewed this and other evidence and has not discovered any supplementary information, which would lead to a different conclusion from that which the SSAT, adopted.

32. There remains the issue of whether Mr Bantick has a continuing inability to work (s94(1)(c) of the Act). The Tribunal notes that both Dr Chow and Dr Walker were agreed that Mr Bantick was fit to work, within some limits of assessment. Elements of Mr Binns’ report and those of the two rehabilitation consultants confirm limited work prospects for Mr Bantick, nonetheless they did not preclude the prospect although noting that the availability of appropriate employment would remain at question.

33. In summary, the Tribunal concludes that on the basis of available evidence and the balance of probabilities Mr Bantick’s case fails to meet the criteria specified in ss94(1)(b) and (c) of the Act, and therefore he is not entitled to continuation of disability support pension.

Decision

34.     The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  (K L Miller Administrative Assistant)

Date/s of Hearing  2 May 2003
Date of Decision  23 May 2003
Counsel for the Applicant         Mr Hamish Locke
Solicitor for the Applicant          Hobart Community Legal Service
Counsel for the Respondent     Ms Rhonda Bradley
Solicitor for the Respondent     Advocacy Branch - Centrelink