Roberts and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1270
•1 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1270
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600539
GENERAL ADMINISTRATIVE DIVISION ) Re FRANK ROBERTS Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member
Dr M Denovan, MemberDate1 May 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – adenocarcinoma of prostrate and osteoarthritis of knees – physical impairment and impairment rating of 20 points – whether “continuing inability to work” during relevant period – impairments not sufficient to prevent applicant working within 2 years subsequent to relevant period – Tribunal satisfied that disability support pension not established – decision under review affirmed.
Social Security Act 1991 (Cth) s 94
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
Re Muir and Secretary Department of Employment and Workplace Relations (2005) AATA 902REASONS FOR DECISION
1 May 2007 Dr K S Levy, Senior Member RFD
Dr M Denovan, MemberBackground
1. The applicant, Mr Frank Roberts made an application to the respondent, Centrelink, for Disability Support Pension on 31 March 2006. Centrelink decided on 8 May 2006 that Mr Roberts did not qualify for Disability Support Pension.
2. On 9 May 2006 Mr Roberts requested a review of that decision, however, the decision was affirmed by the original decision-maker in the first instance, and subsequently by an Authorised Review Officer (ARO) on 22 May 2006.
3. Mr Roberts then appealed the decision to the Social Security Appeals Tribunal (the SSAT). The SSAT also affirmed the original decision of the respondent on 26 July 2006. On 3 August 2006 the applicant appealed to this Tribunal.
Issue
4. The issue for this Tribunal to determine is whether Mr Roberts had a “continuing inability to work” in accordance with s 94(1)(c)(i) of the Social Security Act 1991 (“the Act”). This question must be assessed narrowly, that is, only for the relevant period of 31 March 2006 to 30 June 2006.
Legislation
5.The relevant legislation, current at the time period of the decision under review, is as follows:[1]
[1] See Social Security Act 1991 (Act No. 46 of 1991 as amended).
“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 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d)the person has turned 16; and
(e)the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A)is not an Australian resident; and
(B)is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
Note 1: For Australian resident , qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see section 23(1) and Schedule 1B.
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)… the availability to the person of work in the person's locally accessible labour market
…
94(5) In this section:
…
work means work:
(a)that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.”
6. It is noted that the definition of “work” in s 94 (5) as it currently stands requires an applicant to be unable to work 15 hours per week for the next 2 years, rather than the standard of 30 hours as is required for the period under review here.
Evidence
7. The applicant is now 62 years of age. He was 61 years of age at the date he made the application in 2006.
8. The applicant left school halfway through Grade 8, at the age of 13 years. He had been employed almost continuously since that time until August 2000 when he was approximately 56 years of age. His employment was mostly as a truck driver but he had also been employed as a general labourer and storeman.
9. The applicant informed the Tribunal that in the first week of May 2000, he had an accident at work where he fell on the front of both knees on a cement drive-way whilst carrying a window weighing 100kg on his back. He continued to work after the accident and but engaged in offsider work and light duties.
10. The applicant’s routine had been to leave home at 3.30am and walk from Nundah to Zillmere in order to start work at 4.30am. He had maintained this routine for a considerable time before the accident and after the accident.
11. The applicant saw Dr Pincus on 14 June 2000 and as he was able to perform full squats, Dr Pincus suggested he return to full duties and gave him certification to that effect. The applicant returned to work, but could not lift heavy weights. The subsequent report by Dr Pincus on 11 August 2003 indicates Mr Roberts was not working at that time and states that he has not worked since.
12. There is some history that the applicant has experienced pain in his right knee since about 1994, which discontinued when he ceased jogging. However, he has generally been diagnosed as having osteoarthritis in his right knee since visiting Dr Pincus on 14 June 2000 after his accident in May 2000.
13. The medical opinions and reports before the Tribunal indicate that the applicant’s knee pain was not caused by the accident in May 2000 but was degenerative osteoarthritis.[2]
[2] See Dr Pincus’ report of 11 August 2003.
14. A subsequent report by Dr James Jacobi was provided on 31 March 2006 where he referred to the applicant having two conditions:
(1)adenocarcinoma of the prostate – where at that time the applicant was awaiting results of an MRI scan and was then to undergo treatment at the Royal Brisbane and Women’s Hospital, and
(2)advanced osteoarthritis of the right knee with obliteration of articular cartilage in medical compartment. Dr Jacobi noted that the applicant was awaiting knee replacement surgery.[3]
Dr Jacobi noted that the applicant at that time was “… Unable to walk more than 100 metres [and] difficulty in doing anything whilst standing.”[4]
15.Dr Paul McCoy’s report of 3 April 2006 affirmed the report of Dr Jacobi.
[3] See document “T27” at folio 126-133 of Exhibit 1.
[4] See document “T27” at folios 128 and 130 of Exhibit 1.
16. On 20 April 2006, Dr Hong Lee of Health Services Australia examined the applicant and reported as follows:
(1)Adenocarcinoma of the prostate – this condition was regarded as temporary. Dr Lee decided that the condition was not optimally treated at that time.
(2)Advanced osteoarthritis of both knees – Dr Lee regarded this condition as temporary.
17. Dr James Taylor of the Royal Brisbane and Women’s Hospital provided a report dated 25 November 2006 where he was unable to put an impairment table rating on the condition of adenocarcinoma of the prostate. However, Dr Taylor allocated 20 impairment points to the condition of advanced osteoarthritis of the right knee. Dr Taylor noted that Mr Roberts would not be able to return to his usual occupation of truck driving, but said that after a total knee replacement he would not be prevented from undertaking sedentary tasks. He would not quantify this opinion as he was not familiar with Mr Roberts’ other skills in terms of working capacity and said that expert opinion would be necessary to determine the applicant’s chance of returning to truck-driving after a total knee replacement.
18. On 17 January 2007 a Job Capacity Assessment Report was provided by Ms Ruth Bradbury, a registered psychologist. Ms Bradbury gave evidence by telephone to the Tribunal and said that she had been employed as a psychologist for two years and three months. Ms Bradbury stated in her report “… without intervention, client would struggle to find or obtain suitable work, given his current physical restrictions and his current skill set”. She further noted that he could work for 30 hours per week or more and that “….. it is reasonable to expect that the client would be able to benefit from vocational rehabilitation and would be able to obtain suitable light duties work within two years, based on his condition as it was in March 2006.”.
Consideration Of The Law And The Evidence
19. We have considered all of the oral and documentary evidence as well as the relevant statutory and case law necessary to reach a determination in this matter.
20. The Tribunal has also noted Mr Roberts’ submissions that his condition appears to have deteriorated since his accident in May 2000 and that it has also deteriorated since the date of the original decision giving rise to the decision currently under review. We note also that the applicant has provided more recent reports to the respondent and that it is regarding that new information as a fresh application for Disability Support Pension. In that regard, the applicant also provided a more recent Job Capacity Assessment by a psychologist prepared immediately before the date of the hearing.[5]
[5] See Exhibit 3.
21. While the Tribunal found the applicant to be a credible witness and accepts that his condition has deteriorated since the date of the original decision, the Tribunal is nevertheless charged with addressing the narrow question of whether the applicant qualified for Disability Support Pension in the period 31 March 2006 to 30 June 2006.
22. In that regard, the Tribunal noted that the relevant time period within which to consider a person’s entitlement to Disability Support Pension is during the 13 week period following the date of the claim.[6] If the applicant qualifies within the relevant period, the claim is then taken to be made on the first day the applicant qualifies for Disability Support Pension.
[6] See Schedule 2, Clause 4 of Social Security (Administration) Act 1999
23. It is clear from the legislation and from the medical evidence provided to the Tribunal, that the applicant has a physical impairment as under s 94(1)(a) of the Act; and he has an impairment rating of 20 points under the impairment tables as under s 94(1)(b).[7]
[7] See also the report of Dr Taylor.
24. However, the real issue in this proceeding is whether the applicant satisfies s 94(1)(c) of the Act; specifically, whether he has a “continuing inability to work”. All three of these conditions must be satisfied for the applicant to succeed in qualifying for a Disability Support Pension.
25. Section 94(2) defines the meaning of the term “continuing inability to work”. This requirement can be satisfied where the impairment “of itself” prevents the person from doing any work within the next two years.[8] In addition, s 94(2)(b) provides that the impairment, “of itself” must prevent the person from undertaking educational or vocational training or on the job training for the next two years or, even if such training was undertaken, that the person is unlikely to be able to do any work within the next two years. Section 94(3) imposes a further limitation whereby the availability of vocational training, or the availability of work in a person’s local area, is not to be taken into account.
[8] See s 94(2)(a) of the Act.
26. The first issue to address is whether the impairment “of itself” would prevent Mr Roberts from doing “any work within the next two years”. “Work” means at least 30 hours work per week in an Australian workplace at or above the relevant minimum wage. This concept as included in s 94(2), was amplified by Drummond J in Secretary, Department of Social Security v Pusnjak.[9] There, his Honour held that the expression “any work” should be taken to mean work of a nature which the applicant was capable of performing. Simply put, this means work which would be consistent with the applicant’s work skills and work experience, or in other words, work which he would be “… capable of doing without the need for any training”.[10]
[9] (1999) 56 ALD 444.
[10] Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 at par. 30.
27. In the evidence before the Tribunal it was noted that on 31 March 2006, Dr Jacobi certified that the applicant was unable to walk more than 100 metres and would have difficulty in doing anything whilst standing. However, in cross examination, the applicant told Ms Forsyth that he can weed his garden for 20 to 30 minutes at a time and he walks to the library each day to read the paper. This involves walking approximately 15 to 20 minutes at a time.
28. The Tribunal also noted the report by Dr Hong Lee on 20 April 2006 where he concluded that the applicant would be able to work 15 to 29 hours per week for the following two year period “without intervention”.
29. The Tribunal has taken account of the report of Ms Bradbury where she concluded that the applicant did not have the capacity to work in his usual occupation, but with intervention he could have had the capacity to work for up to 30 hours per week. This does not seem inconsistent with the evidence of Dr Hong Lee and is accepted as being corroborative of the medical evidence.
30. This evidence, together with the evidence of the applicant, is preferred to the evidence of Dr Jacobi.
31. Ms Forsyth submitted that the report of the Work Capacity Assessor should be preferred to the opinions of the medical practitioners in relation to Mr Roberts’ capacity to work. It was submitted that the policy of the current law is on what people “can do” as opposed to what they “cannot do”. The Tribunal agrees that the legislation has become quite strict in its application with the submission concerning the policy of the Act.
32. In this case, consistent with the submission of the respondent, the Tribunal determines that the report of the Work Capacity Assessor and the medical evidence accepted by the Tribunal, is conveniently encapsulated by the position set out in the Tribunal’s decision of Re Muir and Secretary Department of Employment and Workplace Relations[11] where it was said:
“The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person being (sic) assessed does or does not have the requisite work capacity within the meaning of section 94 (1)(c) of the Act.”[12]
[11] [2005] AATA 902.
[12] See Re Muir and Secretary Department of Employment and Workplace Relations 2005 AATA 902 at par.43.
33. The Tribunal is mindful that a new application is being considered on behalf of the applicant and a new assessment has been undertaken for the applicant’s condition as it presently exists. However, that does not help the applicant for the period 31 March 2006 to 30 June 2006, which is the period which we are required to evaluate.
34. We are not satisfied that Mr Roberts’ impairments were of themselves sufficient to prevent him from doing any work within the subsequent two years as it is to be assessed for the 13 week period following the date of the claim.
35. We are satisfied that the qualification for Disability Support Pension under s 94 of the Act has not been established.
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Senior Member RFD and Dr M Denovan, Member.
Signed: .....................................................................................
F. Kamst, Legal Research OfficerDate/s of Hearing 12 March 2007
Date of Decision 1 May 2007
Applicant Mr Roberts himself
Respondent Ms J Forsyth, departmental advocate
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