Russell; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1694

Administrative Appeals Tribunal

WRITTEN REASONS FOR ORAL DECISION [2007] AATA 1694

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/594

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Applicant

And HAROLD RUSSELL

Respondent

DECISION

Tribunal	Senior Member, Mrs Josephine Kelly
Date of oral decision	17 August 2007

Date of written reasons    24 August 2007

PlaceSydney

Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the reviewable decision made by the Social Security Appeals Tribunal dated 20 April 2006.

.......................[sgd].......................

Senior Member, Mrs Josephine Kelly  

WRITTEN REASONS

1. At the conclusion of the hearing of this matter in Sydney, the terms of the decision made and the reasons for that decision were stated orally. The Respondent requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for the decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons.  The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent. 

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether continuing inability to work – job capacity assessments considered – suggestions of suitable employment considered – reviewable decision affirmed – respondent eligible for disability support pension.

LEGISLATION

Social Security Act 1991: Section 94

REASONS FOR DECISION

Senior Member, Mrs Josephine Kelly     

1.      This is my decision in the matter of Secretary, Department of Employment and Workplace Relations and Mr Harold Russell. The decision under review is that of the Social Security Appeals Tribunal (“SSAT”) of 20 April 2006, which set aside a decision to cancel Mr Russell’s disability support pension (“DSP”) and remitted the matter to Centrelink with directions that Mr Russell continues to satisfy paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 and should continue to be paid the DSP. My conclusion for the reasons that follow is that the SSAT’s decision should be affirmed and that Mr Russell did satisfy the requirements of the legislation on 26 October 2005 and therefore qualified for the pension.

2.      My reasons for that are based on the evidence of Mr Russell, the evidence put before me in the T-documents over the years from the time that he initially was granted the DSP in 2000 until its cancellation in 2005, a number of assessments of his job capacity or work capacity as variously stated over time and in particular the following matters.

3.      Mr Russell is a person who left school at the age of 15 to undertake farmhand work. In relation to his literacy level, he says he can read the paper to some extent.  However, it seems that when it comes to filling in forms, on the evidence he gets his wife or his daughter to help him.  He has got the ability to drive vehicles on a property such as tractors, trucks, four-wheel drives and so on, and motorbikes.  It was unfortunately, in riding a motorbike in 1998 while chasing bulls to a cultivated paddock, that a bull kicked his bike.  The bike fell on his left leg, or trapped his left leg underneath it, and he suffered an injury to his left leg and lower back which has continued to cause him problems since then.

4.      From 1998 until 2000 (approximately) he carried out duties for three hours a day, five days a week, light duties, while he was being paid workers compensation.  In 2000 his employer and owner of the property where he worked, with whom he got on very well and whom he respected, had a stroke.  Thereafter circumstances in the management of the property altered.  He told the tribunal that he had then been put on a full-time wage and effectively carried out a caretaker or manager’s role and was able to employ somebody else to assist him with heavy duties.  The essence of his evidence as I understand it was that he was still unable to carry out heavier duties because of the pain in his left leg and lower back, and that that continued.  By the time in 2002 when he left that employment, there seemed to be three factors involved or at least two that he referred to.  One was his frustration with his inability to do the work that he had previously been able to do. 

5.      The second thing was the interference with the owner’s management of the property by family members, and in particular, by a nephew.  Those factors seemed to lead to Mr Russell finding that he simply was unable to continue to work in the position.  He also described how he was very angry at that time and took it out on his wife, children and animals including, he told me, running over his dog that was in the roadway deliberately and killing it.  At the end of 2002 he applied for and was granted the DSP.  However, in October 2005 it was cancelled and that is the decision which has given rise to this case.

6.      I should note that I did consider that Mr Russell exaggerated his disabilities to some extent.  He kept getting up and down throughout the hearing and groaning and the like, and that is not consistent with any of the reports that I have to date.  However, I do accept in general terms that his disability has been ongoing since 1998 and by the end of 2002 when he qualified for the DSP the Department certainly accepted that he was disabled.

7. First of all I should say that the Department initially considered that Mr Russell only had 15 points under section 94(1) but for the purposes of the proceedings conceded that he satisfied the 20 point criterion and in particular as I understand it, that was based on a report of Dr Graham Doig dated 28 September 2006 where that doctor gave Mr Russell 10 points for his lower back impairment as opposed to 5 points given by a work capacity or job capacity reviewer, Mr Robilliard, who carried out a review on 20 November 2006, which was about two months after Dr Doig’s opinion.

8.      The evidence principally before me which I have to take into account follows.

9.      At the time of the cancellation an assessment was carried out by an Advanced Personnel Management employee who only signed the report as ‘Margaret’, who was an ‘RN’ which I assume means a registered nurse.  I would note that in my opinion it is not helpful and inappropriate for somebody just to sign their given name when they are signing a report which determines, or contributes to, a decision as to whether somebody receives a DSP, or some other social security benefit.  It seems to me that there is a responsibility in carrying out that assessment which requires that a person clearly identify themselves and their qualifications.

10.     Now, in terms of Mr Robilliard’s assessment which was carried out in November 2006, I also had the benefit of hearing his oral evidence.  When I come to consider the assessments that have been carried out by the same company Advanced Personnel Management by three different assessors, a Ms Collis in 2003, Margaret (no surname) in 2005 and then Mr Robilliard in 2007, it has caused me some difficulty in looking at the various assessments that they have come up with.  Clearly in summary Ms Collis did not think that Mr Russell would satisfy the 30 hours a week even after assistance with education or training, whereas as both Margaret (no surname) and Mr Robilliard did.

11.     Something that also struck me about the reports of Margaret and Mr Robilliard was their assessments of his ability to work.  Margaret’s assessment was rather less.  She assessed Mr Russell’s work capacity to be less than 7 hours per week and without any intervention programs this could increase to 8 to 14 hours per week within six months.  I have no knowledge and I cannot understand what was going to happen to allow for that increase.  I find that very difficult to understand.  She then considered with interventions that Mr Russell’s work capacity would increase to 30-plus hours.  So from the current capacity of 7 hours an unexplained increase to 8 to 14 hours within six months and from there to 30 plus hours within six months with interventions.  I find that difficult to comprehend.  She suggested suitable work was a bus driver, heavy truck driver, forklift driver, B-class driver and taxi driver.

12.     I also note in that report that she said that:

Upon being told that it may be possible to help him get his driver’s licence the customer  [I understand that to mean Mr Russell] and his wife became excited and advised that with that he could get a truck-driving job with no trouble.

13.     However, although Mr Russell was referred to that, I accept his evidence that even at that time he would not have been able to drive a truck for 30 hours a week because of his inability to get up, get into and out of the truck, given his left leg and lower back pain, as well as sitting in a truck for, on my maths, six hours a day at least.

14.     Now, coming to Mr Robilliard’s assessment, he found that the current capacity for work was 23 to 29 hours per week and that contrasts with Margaret’s assessment at the relevant date of up to 7 hours per week.  He then said the future incapacity for work within 24 months without intervention was 23 to 29 hours per week.  Margaret said it would be 8 to 14 hours per week within six months and then they both determine that it can increase to 30 plus hours per week with intervention.  Margaret said within 6 months and Mr Robilliard said within 24 months.  I should note that all the assessors have noted the barriers Mr Russell has to employment and they are numerous: physical limitations, limited employment history, motivation, physical fitness, literacy, numeracy, limited skills and experience, geographic isolation, manual dexterity and endurance limits.  Those are the ones that were noted by Mr Robilliard.

15.     Now, I was curious to know what Mr Robilliard’s qualifications were to determine somebody’s ability to go back to work and their ability to work.  He referred to his injury management experience.  That did not really assist me because it did not really explain how he could establish what Mr Russell could do.  His suggestion was that Mr Russell could be a bench assembler, gatekeeper or taxi driver.  I asked him about his experience with, and what was meant by, a bench assembler.  He gave an example of a worker at Sara Lee, or the first of two examples, a worker at Sara Lee standing working.  When I said, well, that was not exactly what he had talked about for Mr Russell (which he talked about being able to stand or sit) he then said “Oh well, there was an example of a worker who had a chair that was specified particularly for them”,  which allowed them to essentially, as I understand it, sit or stand in some way.

16.     When I asked about what he understood a gatekeeper’s job to involve in terms of sitting and standing, he referred to going to a tunnel construction where he saw a gatekeeper working and on his observations as he walked past a couple of times, that was the basis of his opinion.  I understand what a taxi driver does and that is not something about which I am concerned.  However, it does trouble me that Mr Robilliard was suggesting positions about which, with respect, I did not consider he had a great knowledge.  I should also note that the Department’s case was somewhat complicated by the fact that while they accepted Mr Robilliard’s assessment of Mr Russell’s ability to work they did not accept his assessment of the lower back impairment, as I have pointed out earlier, because they accepted Dr Doig’s which was 10 points, whereas Mr Robilliard gave 5.

17.     Given the fact that Mr Robilliard had only assessed 5 points for the lower back it seems to me somewhat difficult to then accept his opinion in relation to the inability to work.  One cannot in my opinion divorce his assessment of Mr Russell’s work capacity from his impairment assessment although Mr Richardson did seek to do so.  Mr Robilliard said that it did not make any difference to his work assessment but in my respectful opinion that does not follow.

18.     I also had the advantage of a report from a Dr Roland Loeve which was given in 2007.  Because of the way the doctor’s opinion was framed it really did not help me to a great extent because it seemed to be an opinion as of the date of the report in 2007 whereas I have to consider the situation as of the original decision in October 2005.  In my assessment the work capacity report done in 2005 by Margaret does not persuade me that Mr Russell had the capacity to work, as she found, within 24 months or within 6 months.  It therefore is my view that the SSAT decision was correct and as I have indicated I affirm that decision.

19.     I would just comment that in relation to Mr Russell that although his DSP will continue it would be unfortunate if he did not perhaps try to improve his health, his fitness by loss of weight and improved diet, and perhaps seeking to improve his educational qualifications over time and undertake some work, although as I have indicated I am not satisfied that he could have worked 30 hours per week in 2005 as required under the law.  For those reasons, as I have said, I affirm the SSAT decision.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly

Signed: Ms P Nimmagadda
              Associate

Date of Hearing  16 August 2007 
Date of Oral Decision                17 August 2007
Date of Written Reasons          24 August 2007
Solicitor for Applicant                Fairbairn Lawyers
Advocate for the Respondent   Centrelink Legal Services Branch