Re Watts and Secretary, Department of Family and Community Services

[2003] AATA 632

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 632

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/1297

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		DORRAINE WATTS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date3 July 2003

PlaceMelbourne

Decision The decision under review is affirmed.

...............................................

Senior Member

Social Security; Cancellation of disability support pension; impairment and level of impairment conceded; whether the applicant has a  “continuing inability to work”; decision affirmed.

Social Security Act 1991 s94(2), (3), 94(5)

Acts Interpretation Act 1901 ss28A, 29

REASONS FOR DECISION

3 July 2003   Mr J Handley, Senior Member

1.      This application was listed for hearing in Mildura on 19 May 2003.

2.      A notice of the hearing was forwarded to the applicant at her last known address namely C/- Robinvale Post Office.  Mrs Watts did not appear at the hearing.

3.      On 19 May 2003 it was learnt that the applicant had provided another address for her correspondence to the respondent namely C/- Mildura Post Office.  The respondent had been aware of that address since at least February 2003 because on 17 February 2003 a letter was forwarded to Mrs Watts at the Mildura Post Office, notifying her of an appointment that had been arranged for her to be examined by a vocational training officer.  Mrs Watts apparently received that letter because she attended that appointment.

4.      The hearing in Mildura was adjourned.  On 20 May 2003 the Registrar wrote to Mrs Watts C/- Mildura Post Office notifying her that three possible options were available to conclude the review namely:

i.to conclude the review upon the documents presently lodged and upon any written submission that Mrs Watts may care to make; or

ii.convene a hearing by telephone (subject to Mrs Watts notifying the Tribunal of a contact telephone number); or

iii.convening a face-to-face hearing in Bendigo in July where the Tribunal would then be sitting on circuit.

5.      Mrs Watts was asked to notify the Registrar within 21 days which of the above options she preferred.

6. When these reasons were being drafted, the letter of 20 May 2003 was returned to the Registrar, from the Mildura Post Office. A forwarding address was not provided. The letter of the Registrar was forwarded to the applicant’s last known address, the envelope was properly addressed, pre-paid and posted, (but its return, uncollected, probably does not permit its service to be deemed - refer s28A and s29 of the Acts Interpretation Act 1901).

7.      It is believed that Mrs Watts is travelling around Australia with her partner.  In an outreach discussion between a Tribunal officer and Mrs Watts on 6 January 2003, the applicant requested all correspondence to her be forwarded C/- the Robinvale Post Office.  Other than her participation in a telephone conference on 22 January 2003, the Tribunal has not been advised by Mrs Watts of a change of address.  Indeed there has been no communication from her since 22 January 2003.  The last address held by the respondent was the Mildura Post Office.  In these circumstances the current whereabouts of Mrs Watts is not known.

8. Accordingly I propose to conclude this review by delivering these reasons for decision on the documents presently lodged being the documents filed by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975, a Statement of Facts and Contentions lodged by the respondent on 9 May 2003, a copy of a report of Ms Lamb, a Centrelink disability officer with attachments, and sundry correspondence.

9.      The applicant is presently 54 years of age who was granted disability support pension in 1997.

10.     In June 2002 the respondent decided to review her ongoing entitlement and it was ultimately decided that pension should cease.  A customer service officer made a decision in those terms on 6 June 2002 (T41) which was confirmed following a request by Mrs Watts to review on 30 July 2002 (T46).  An authorised review officer affirmed the primary decisions on 12 August 2002 (T49).

11.     The Social Security Appeals Tribunal decided on 8 October 2002 to affirm the decision under review.

12. The respondent concedes that the applicant satisfies s94(1)(a) and (b) of the Social Security Act 1991 (“the Act”). It was submitted that the applicant could not satisfy sub-section (c) namely, that the applicant does not have a “continuing inability to work”.

13.     The expression “continuing inability to work” is found at s94(2) and (3) of the Act which reads as follows;

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.

14.     Section 94(5) defines the meaning of the expressions “educational or vocational training” and “on-the-job training” and “work”.  That sub-section is reproduced as follows:

“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.

15.     In a “Treating Doctors Report” completed in December 1995 (T17) the injuries suffered by the applicant were diagnosed as “right shoulder injury; depression”..  In a report prepared by the Australian Government Health Service on 18 March 1997 (T30) it was indicated that Mrs Watts was awaiting right shoulder surgery, and whilst improvement was anticipated, it was expected that there would be permanent restrictions.  Those restrictions were recited as inability to work overhead, an absence of repetitive lifting pushing or pulling or other repetitive movements of her right arm.  Low back pain with x-ray evidence of degeneration was also noted and restrictions were imposed with respect to bending, lifting and twisting.  The applicant’s depression was then noted and it was found she had “recovered”..  However, it was reported Mrs Watts would be “vulnerable to any increased stress as would occur with seeking employment and coping with a new job”.

16.     In a medical review of 4 April 2002 (T33) which I assume was a prelude to the making of the decision under review in these proceedings, the applicant recorded in a medical review claim form that she then suffered from “constant pain in right shoulder and standing or sitting for too long makes my back hurt”.  At T33 the applicant recorded that her injuries “sometimes” affects her when sitting and walking and affects her “often” when standing and using public transport.  She reported restrictions when bending and restrictions “often” when lifting and carrying.

17.     The report of a radiologist dated 5 April 2002 is found at T33 and it records normal alignment of the gleno-humeral and acromio-clavicular joints.  Thoracic kyphosis was noted but there was no “bone destruction or soft tissue calcification visible in the right shoulder”..  A mild thoracic scoliosis convex to the left was noted with normal alignment of the twelfth thoracic vertebrae.  Some degenerative narrowing of the anterior parts of thoracic disc space was observed as was a mild lumbar scoliosis convex to the right.  Normal alignment of five lumbar vertebrae were observed with minor osteophytic spurring at L4 and L5.  Narrowing of lumbar disc spaces was not observed but some osteoarthritic changes were noted in the facet joints of the lower lumbar spine.

18.     Dr Origanti, who was the applicant’s treating practitioner completed a report on 4 April 2002 (T34).  The doctor regarded the condition as being “long term” and it was thought that it would be between “12/24” months before the applicant would be able to return to full time work of at least 30 hours per week.  Nonetheless the doctor recorded that Mrs Watts was likely to be able to undertake work of at least 8 hours per week within the next two years and that she would benefit from training and educational rehabilitation.  It was noted (page 118) that Dr Origanti first consulted Mrs Watts on 4 April 2002 being the date of the report.

19.     On 31 May 2002 Dr Skinner at the request of Health Services Australia completed a medical questionnaire (T35).  He found that the applicant did have a permanent impairment attracting 20 impairment points with respect to the shoulder and back injuries.  At paragraph 8 of the questionnaire (page 129) Dr Skinner recorded, that the applicant was not “now” fit for work or study but at paragraph 12 recorded that the applicant was “now” likely to be able to return to part time and full time work and study for at least 15 hours per week.  He found that the applicant could benefit from on the job training of a duration between three and six months.

20.     In a typed report found at T35 Dr Skinner concluded:

My feeling is that she would be medically capable of light work, full time, like office work, for example (though she has no experience in this), jewellery shop assistant, or control room operator”.  I note that the treating doctor’s opinion that she is temporarily unfit for work, but believe the above discussion covers the reasons for my contrary view.

21.     On 9 July 2002 the applicant lodged a further medical questionnaire with the respondent completed by Dr Egan of Redcliffs.  Dr Egan recorded that it would be “more than two years” before Mrs Watts would be able to return to part time work of at least eight hours per week and be able to return to study for 15 hours per week.

22.     On 24 July 2002 Dr Harries, a practitioner in the employ of Health Services Australia Pty Ltd provided a report (without examining the applicant).  She agreed with the conclusions of Dr Skinner and apparently had access to the opinions of Dr Origanti and Dr Egan.  It was her opinion that the opinion of Dr Skinner should be preferred.

23.     The decision made on 6 June occurred before the opinions of Dr Egan and Dr Harries were lodged with Centrelink and the decision maker at that time, therefore, only had access to the opinions of Dr Origanti and Dr Skinner.  The decision made on 30 July 2002 records that the opinion of Dr Egan was considered but there is no reference then made to the opinion expressed by Dr Harries.

24.     A disability officer interviewed Mrs Watts on 14 February 2003 in Mildura.  With regard to the opinions expressed by Dr Skinner and Dr Harries, the disability officer assessed the applicants ability to work within the restrictions listed.  It was found that Mrs Watts could work as a cashier, subject to avoiding repeated sitting and standing.  Similar restrictions would be placed against employment as a “ticket sales person” and “product grader”..  Restrictions as to raising her arm above head height and lifting and twisting type operations involving her shoulder were recorded against the ability of the applicant to work as an “usher and door attendant” and as a “tourist guide”.

Conclusion and Reasons for Decision

25. I am satisfied that the concessions made by the respondent under s94(1)(a) and (b) are sound, namely that the applicant does have a physical impairment which is of 20 points or more under the impairment tables.

26.     The cessation of disability support pension by the respondent was on the basis that a Centrelink officer decided that Mrs Watts did not have a “continuing inability to work”.

27.     The opinions expressed by the doctors are varied (refer earlier).

28.     I am not confident that the impairment of the applicant would permit working within the next two years.  Whilst I note that Dr Origanti had attended the applicant on one occasion only, I also note that Dr Skinner has assessed the applicant once only and Dr Harries has not ever consulted the applicant.  I note that the applicant has had long term pain and discomfort from her shoulder and back injuries which apparently satisfied the respondent in the 1990s that she was qualified for disability support pension.  With advancing years and documented evidence of degeneration, I am satisfied on the documents read that the applicant has an impairment greater than existed when she first qualified for disability support pension.

29.     However the concept of “continuing inability to work” is not confined only to the ability to work.  It involves consideration (s94(2)(b)) of whether the applicant for benefit has an impairment which prevents the undertaking of education or vocational training for a period of two years or if not so prevented such training would be unlikely to enable a person to undertake work for the next two years.

30.     Despite the extent of the applicant’s injuries and her age I could not be confident that she is beyond being trained for another job or occupation.  Dr Origanti was of the opinion that the applicant would be likely to benefit from training, education or rehabilitation as was Dr Skinner and Dr Harries.  Dr Egan did not complete that part of the questionnaire which dealt with this issue.

31.     Despite the conclusions reached as to the inability of the applicant to work within the next two years by reason of her impairment, I cannot be confident that the impairment would also preclude the applicant from being able to undertake educational or vocational training within the next two years.

32.     The provisions of s94(3) prohibit taking into account the availability (or unavailability) of educational or vocational training.  Educational or vocational training (s94(5)) does not include programs which have been designed specifically for persons with physical impairments.

33.     On balance, having regard the documents read, and to the provisions of s94 in issue of these proceedings, I am obliged for the above reasons to find that the decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member

Signed:   Elsa Genovese
  Personal Assistant

Date of Hearing  19 May 2003
Date of Decision  3 July 2003
Solicitor for the Applicant          Self Represented
Advocate for the Respondent   Ms K Navarro