Ryde and Repatriation Commission
[2004] AATA 323
•16 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 323
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2002/1929
VETERANS' APPEALS DIVISION ) Re ELNA PEREZ RYDE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Date16 March 2004
PlaceSydney
Decision The decision under review is affirmed. (Sgd) M D Allen
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Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Claim for income support supplement by war widow – Applicant unable to show she was permanently incapacitated for work – Reports of specialist in Rehabilitation Medicine and medical practitioner at Health Services Australia preferred to Applicant’s general practitioner – Decision affirmed.
Veterans' Entitlements Act 1986 - ss 45A, 45AA.
REASONS FOR DECISION
16 March 2004 Senior Member M D Allen 1. Pursuant to an application made the 16th day of December 2002, the Applicant sought review of a decision of a senior delegate of the Respondent, the Repatriation Commission (“the Commission”) dated 6 December 2002, affirming a prior determination that the Applicant was ineligible for income support pension within the meaning of section 45AA of the Veterans Entitlements Act 1986 (“the VEA Act”), as amended.
2. Section 45A of the VEA Act provides inter alia, that if a person is a war widow of qualifying age and who is permanently incapacitated for work in accordance with a determination under section 45AA, she is entitled to income support supplement. It is not disputed in these proceedings that the Applicant is a war widow and she is of eligible age. What is disputed is whether she is permanently incapacitated for work.
3. Section 45AA provides, inter alia, that “The Commission must by written determination specify the circumstances in which persons are permanently incapacitated for work…..” That determination is a disallowable instrument. The Commission has made such an instrument which is entitled the Veterans’ Entitlements (Income Support Supplement - Permanent Incapacity for Work) Determination 1999. Paragraph 5 of that determination states inter alia:
“….. a person is permanently incapacitated for work if ….. because of the impairment, the person cannot do work of the kind mentioned in section 6 for the following 2 years.”
Paragraph 6 then provides:
“Kind of work for subparagraph 5(2)(b) is …..
(a) for at least 30 hours a week at award wages or above; and
(b) that exists in Australia even if not, for a particular person, in a locally accessible labour market.”
4. The Applicant has referred to a report by her general practitioner, a Dr Leones, which refers to her having bilateral wrist pain and chronic neck and back pain. That report is to be found in Exhibit R4 which is a copy of the clinical notes of Dr Leones. She also states that she would like to be able to work but cannot.
5. For the purposes of assessing her for the pension, she was examined by a medical practitioner from Health Services Australia, a Dr Ma, on 18 September 2002. Dr Ma's report is found at document T9 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. In that report, under the heading "Clinical Findings", Dr Ma states:
“She has normal walking gait. She has normal transfer. The movements of her neck and back are within normal limits. The movements of her hands are normal. She is noted to be right hand dominannt (sic). She can sign all the consent forms at once without problems. She can climb up to the examination couch without significant difficulty. She can squat and kneel.”
Having looked at x-rays of the spine and of the hands, he gave her a total impairment rating of five and concluded:
“She is medically fit for light manual work, less skilled or semi-skilled works, on a full-time basis. She is very enthusiastic to work but she reports that it is difficulty (sic) to find jobs due to the current labour market. She is doing a commercial cookery course at TAFE and she hopes that she can work in this area after finishing the course in Novemember (sic) this year.”
6. When this matter first came on for hearing before me on 2 October 2003, there was no appearance by or on behalf of the Applicant. There was however present Dr Harvey-Sutton, a Consultant Occupational Physician. Dr Harvey-Sutton's report of 11 April 2003 was in evidence as exhibit R2 and I proceeded to take evidence from Dr Harvey-Sutton. Subsequently, when the Applicant did arrive at the hearing and by which time Dr Harvey-Sutton had given her evidence and departed, a copy of the transcript of Dr Harvey-Sutton's evidence was provided to the Applicant and I would say there have been no medical reports tendered for or on behalf of the Applicant to in any way challenge the reports of Dr Harvey-Sutton.
7. The Applicant was examined by Dr Harvey-Sutton on 31 March 2003. After taking a detailed history and an examination, Dr Harvey-Sutton stated inter alia:
“She would appear to have intermittent pain and swelling in the hands associated with prolonged periods of scrubbing and thus she would appear not to have a permanent condition in relation to her wrists or hands. There was no clinical evidence of any significant arthritic condition; whilst it appears from the documentation that x-rays demonstrated early degeneration of the 1st MCP joints, this is not uncommon in asymptomatic individuals.
In relation to the back, she does have age-related degenerative changes in the spine and is intermittently symptomatic, particularly if she performs significant amounts of heavy lifting as in a nursing home, but is able to continue with this work. It is more likely than not that her lumbar spine condition is permanent.
She appears to have had an episode of disabling pain in the knees some 5 years ago but this has not recurred.”
In conclusion Dr Harvey-Sutton stated:
“I am of the opinion that her condition does not prevent her from doing any work for more than 30 hours per week within the next two years. The type of work she could perform are the previous types of her employment, namely, nanny, childcare, nursing assistant, primary school teacher.”
Finally Dr Harvey-Sutton said:
“….…she does not appear to satisfy the criteria for the Disability Support Pension, namely:
º20 points or more impairment relating to the conditions which have been fully investigated, treated and are considered stable.
º A current incapacity to work.
ºAn incapacity for retraining, either on-the-job or formal educational or vocational training.”
8. For completeness sake, I would again refer to the clinical notes of Dr Leones. There is in there a report from Cardiologist, Dr Donald dated 24 January 2000 which, having referred to a specific event says the Applicant has always had atypical chest pain before. This doesn't sound like a cardiac event. An earlier report from Dr Donnell dated 13 March 1998 said:
“I can't find evidence of heart disease.”
9. Taking all these matters into consideration, it is clear that the opinions of the Consultant Occupational Physician, Dr Harvey-Sutton, and the opinion of the medical practitioner at Health Services Australia, being a person who is well-versed in assessing persons for disability support pensions and similar type pensions is that the Applicant is capable of undertaking employment for more than 30 hours a week. It goes without saying that I prefer their report to that of the local general practitioner, but given those reports it is clear the Applicant does not satisfy the criteria which enables me to say that she is permanently incapacitated for work and thus, she is not entitled to an income support supplement.
10.The decision under review is therefore affirmed.
I certify that the 10 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: (Sgd) K. Wong .....................................................................................
AssociateDate of Hearing 13 January 2004
Date of Decision 16 March 2004
Representative for the Applicant Self-represented
Advocate for the Respondent Mr Nigel Bunn
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