SHANE LYDE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 452

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 452

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5579

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHANE LYDE

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date18 June 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...............[Sgd]...............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Whether the applicant had a continuing inability to work due to a permanent impairment - Decision affirmed

Social Security Act 1991 (Cth) s 94, Sch 1B

Social Security (Administration) Act 1999 (Cth) Sch 2

REASONS FOR DECISION

18 June 2010 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      I have to decide whether Mr Shane Lyde (the applicant) was qualified for Disability Support Pension (DSP) when he made his claim for that benefit or in the succeeding 13 weeks.  In considering his application I have to assess whether, under social security law, he had a continuing inability to work because of a permanent impairment.

CLAIM OF APPLICANT

2.      On 29 April 2009, the applicant lodged a claim for DSP.  In that claim form he listed that he has a condition of “compartmental osteoarthritis of right hip”.  In the claim form the applicant outlined the following restrictions which affect his ability to work or study: “Cannot lift heavy objects without pain to knee, standing after two hrs also hurts the more I remain standing and walking causes pain”.

TREATING DOCTOR’S REPORT

3.      On 30 April 2009, Dr Liaw completed a Medical Report in respect of the applicant’s claim.  Dr Liaw confirmed that the applicant has “right post traumatic chondromalacia patellae syndrome”, which was diagnosed in 2005.  Dr Liaw reported that the condition causes the applicant pain in his right knee when walking.  Dr Liaw stated that the applicant was currently receiving “nil” treatment for the condition and had “nil” planned treatment.  Dr Liaw also reported that the impact on the applicant’s ability to function was such that the applicant is unable to walk without pain and cannot lift.

JOB CAPACITY ASSESSMENT REPORT 

4.      On 11 May 2009, a Job Capacity Assessment Report was completed by a Centrelink social worker.

5.      In that report, the applicant was assigned 20 impairment points pursuant to Table 4 of the Impairment Tables for the applicant’s lower limb conditions.  No rating was recommended for arthritis as it was found to be generally well managed with home exercise and caused minimal functional impact.

6.      The applicant was assigned a current and future capacity without intervention of 15-22 hours on the basis of the functional impacts of the lower limb condition.  The type of suitable work listed was light, less skilled work.  With intervention from vocational rehabilitation, it was anticipated that the applicant could achieve 23‑29 hours per week of work capacity.

SPECIALIST MEDICAL EVIDENCE

7.      The applicant provided Centrelink with two specialist reports which were compiled for the purposes of a compensation claim for the hip and knee condition of the applicant.

Dr Morgan

8.      Dr David Morgan, Orthopaedic Surgeon, made a report on 4 April 2008.  That report was commissioned by WorkCover Queensland.  Dr Morgan opined that there is a causal link between a workplace accident in 2005 and the right post-traumatic chondromalacia patellae syndrome.  Dr Morgan considered that there was no causal link with the hip condition.  Dr Morgan considered that the applicant’s future remunerative prospects are limited by the accident (although they are the same limitations as caused by the hip condition).  Dr Morgan considered that the applicant remained capable of recreational activities such as bike riding, swimming and exercise at the gym.  Dr Morgan considered that the applicant did not require ongoing orthopaedic care for his right knee injury and his domestic independence was not adversely affected by the accident.

9.      Dr Morgan noted that the applicant was employed as a door assembler until November 2007.  Dr Morgan opined that while the applicant was not suited to heavy laborious forms of manual duty, he was still capable of full time employment.  Dr Morgan stated:

He does remain capable of full time gainful employment performing more sedentary work practices. He could work as a car park attendant, a gate attendant, a traffic warden, a call centre operator, a telemarketer, a courier driver, a taxi driver or a ticket salesman.  There are many forms of employment for which he is physically capable such that he could continue working through to a normal retirement age.”

Dr Wallace

10.     Dr Malcolm Wallace, Orthopaedic Surgeon, made a report on 4 April 2008.  That report was commissioned by the solicitors who were instructed by the applicant to pursue his WorkCover claim.  In that report, he mentioned that the applicant took Brufen and other analgesics to treat his conditions.  There was no physical treatment given to his conditions.  Dr Wallace stated that the applicant had previously worked as a labourer and engaged in other non-skilled activities.  He had also worked as a light and sound engineer and in forestry and landscaping.  Dr Wallace noted that the applicant has completed secondary schooling to a year 10 level and has completed a Certificate II in Glazing and a Certificate in Forestry.

11.     Dr Wallace reported that the applicant was not able to continue his interest in bushwalking, and when driving a motor vehicle he experiences ongoing pain when sitting.  Dr Wallace stated that the applicant managed activities of daily living, but had difficulties with stairs, running and squatting.  Dr Wallace opined that “…taking into account his training, education and experience and the extent of his ongoing problems including the limp, inability to squat or do heavy work, his employability on the open labour market is significantly adversely affected”.

PRIOR DECISIONS

12.     On 7 July 2009, Centrelink made a decision to reject the applicant’s claim for DSP.  The applicant was assigned 20 impairment points but was found to have capacity to work for 15 or more hours per week.

13.     On 28 August 2009, the decision was affirmed by an Authorised Review Officer (ARO) who was satisfied that the applicant achieved a minimum impairment rating of 20 or more points, but found that with vocational rehabilitation over the next two years, the applicant would be able to work for more than 15 hours per week. 

14.     On 22 October 2009, the Social Security Appeals Tribunal (SSAT) affirmed the decision of the ARO.  At the hearing before the SSAT, the applicant stated that he might be able to do three hours work a day for five days per week.

RELEVANT LEGISLATION

15.     The relevant legislation that I have to administer for the determination of this application is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

QUALIFYING PERIOD

16. Subclause 4(1) of Schedule 2 of the Administration Act provides:

4.(1)  If:

(a)a person (other than a detained person) makes a claim for a relevant social security payment; and

(b)the person is not, on the day on which the claim is made, qualified for the payment; and

(c)assuming the person does not sooner die, the person will, because of the passage of time or the   occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d)       the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

17.     The claim of the applicant for DSP was lodged on 29 April 2009.  Under subclause 4, the qualifying period for determining whether the applicant is qualified for the benefit is whether he becomes qualified within the period of 13 weeks after the day on which the claim is made.  This means that I must consider whether the applicant became qualified during the period 29 April 2009 to 29 July 2009 inclusive (“the period in question”).

QUALIFICATION FOR DISABILITY SUPPORT PENSION

18. Section 94 of the Act provides:

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…

…

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 independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

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 a training activity; or

(b)the availability to the person of work in the person's locally accessible labour market.

94.(5)   In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)       education;

(b)       pre‑vocational training;

(c)       vocational training;

(d)       vocational rehabilitation;

(e)       work‑related training (including on‑the‑job training).

"work" means work:

(a)that is for at least 15 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.

19. The applicant must satisfy the requirements of s 94 of the Act in order to be qualified for DSP.

IMPAIRMENT

20. I consider that the applicant satisfies the requirements of s 94 (1)(a) of the Act. There is no issue that the right post traumatic chondromalacia patella condition is a “physical” impairment. The treating doctor in his report of 30 April 2009 records that the right post traumatic chondromalacia patella condition has a significant impact on the ability of the applicant to function.

21.     On the state of the evidence before me I cannot find that the right hip condition of the applicant is an impairment.  The applicant had an operation to correct a labral tear in the right hip.  Since that operation the applicant has stated that the right hip condition is now fine.  The treating doctor’s report of 30 April 2009 records that the applicant has had labral hip surgery in December 2008.  The treating doctor has not listed the right hip condition as having any impact on the ability of the applicant to function.  I appreciate that the applicant informed the SSAT that he is concerned about the possibility that he will have arthritis at the right hip location but there is no evidence that at present this is a matter of concern.

RATING OF IMPAIRMENT

22. I consider that the applicant does not satisfy s 94 (1)(b) of the Act. This is because on the state of the evidence before me I am unable to assign a rating to the right post traumatic chondromalacia patella condition of the applicant.

23. A rating is assigned for a condition in accordance with the Tables in Schedule 1B of the Act. The Introduction to the Tables in Schedule 1B provides: “For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilized”.

24.     The treating doctor’s report of 30 April 2009 is the most recent medical report which is in evidence before me.  Section J of the form of the report calls for an expression of the treating doctor’s opinion regarding the patient’s ability to function “[w]ithin the next two years”.  The treating doctor has given an “uncertain” answer to that question.  This is consistent with the evidence of the applicant that he expected some improvement in his condition.  Having regard to this evidence, I consider that I am unable to assign a rating to the right post traumatic chondromalacia patella condition of the applicant which would appear to be not “stabilised”.

25.     Quite typically in cases where an injury has stabilised, the treating doctor would tick the box next to the “Remain unchanged” answer on the form.  I also make the comment that the treating doctor has not provided any details about the right post traumatic chondromalacia patella condition of the applicant in the box which accompanies Section J on the form.

26.     At the hearing, the applicant stated that he would not be a reliable employee because he would experience pain in periods of rain.  The applicant also stated that he has recently seen a specialist who he thought would provide a report on the current state of his right post traumatic chondromalacia patella condition.  During an adjournment of the hearing the applicant was unable to ascertain whether a report would be provided to him by his specialist.  I gave the applicant fourteen (14) days to file any specialist report which he stated would be sufficient time for that purpose.    The applicant has, however, not filed any such specialist report. 

27.     I will add that the applicant did not list his right post traumatic chondromalacia patella condition on his claim form.  The only condition which was listed was his condition of “compartmental osteoarthritis of right hip” which has been repaired through labral hip surgery.  If his right post traumatic chondromalacia patella condition was a serious impediment to his employment, I would have expected him to also list that condition on his claim form.

CONTINUING INABILITY TO WORK

28. Having regard to my finding that the applicant does not satisfy s 94 (1)(b) of the Act, it is in all strictness not necessary for me to consider whether the applicant has a “continuing inability to work” as required by s 94 (1)(c) of the Act. However, as this issue was the subject of submissions I will give my conclusion on this issue.

29.     I am not satisfied that the applicant had a continuing inability to work at the time of his claim or within 13 weeks after that date.  I also do not think that the applicant’s impairment was not, of itself, sufficient to prevent him from undertaking a training activity during that two year period nor was such training unlikely, because of his impairment, to enable him to do any work independently of a program of support within the next two years.

30.     The Job Capacity Assessor stated that the applicant had sufficient work capacity to engage in 15-22 hours of work without any intervention and 23-29 hours per week with the intervention from vocational rehabilitation.  This assessment accords with the information that the applicant provided to the SSAT that he would be able to work at least 15 hours a week in a sedentary office job.

31.     In giving evidence before me, the Job Capacity Assessor mentioned that there was no evidence of cognitive dysfunction on the part of the applicant.  The applicant has also, to his credit, completed a course of study for three TAFE certificates.

32.     I also have relied upon the opinion of Dr Morgan, who is a specialist of some seniority, that the applicant does remain capable of full time gainful employment.  His report is comprehensive and has not been contradicted by any other medical evidence.  I also mention that his report was made before the applicant had labral hip surgery.  This procedure has, on the evidence of the applicant, improved his condition.

33. I am of the view that the applicant does not satisfy s 94 (1)(c) of the Act.

DECISION 

34.     I affirm the decision under review.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .................................[Sgd]............................................
              Kate Slack, Research Associate

Date/s of Hearing  17 May 2010
Date for filing further evidence  7 June 2010
Date of Decision  18 June 2010
Applicant was self-represented
Solicitor for the Respondent     Joe Guthrie, departmental advocate