Teske and Secretary, Department of Family and Community Services

[2004] AATA 1116

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1116

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/999

GENERAL ADMINISTRATIVE  DIVISION		)
Re		GREGORY TESKE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member McCabe

Date27 October 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..........[Sgd] B J McCabe..........

Senior Member

CATCHWORDS

SOCIAL SECURITY LAW – pensions and benefits – disability support pension – whether applicant’s impairment rating is of 20 points or more – decision affirmed

Social Security Act 1991

Freeman v Secretary, Department of Social Security (1988) 15 ALD 671

REASONS FOR DECISION

27 October 2004 Senior Member McCabe    

Introduction

1.      Mr Teske is the applicant in these proceedings.  He has applied for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 21 September 2000.  The SSAT affirmed a decision of a Centerlink officer of 16 July 1999 to cancel Mr Teske’s payment of disability support pension (DSP).

2.      Mr Teske is now in receipt of the DSP.  Therefore these proceedings address the question of whether Mr Teske is entitled to receive backpay.

3.      The matter was heard on 27 September 2004.  Mr Teske represented himself.  The respondent was represented by Ms Wallis-Dunn, a departmental advocate.  In evidence were the following documents:

• The documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 (the “T-documents”);
• Two reports of Dr James Edwards dated 3 August 1993 and 10 November 1998;
• A report of Dr Gillett dated 26 March 2003;
• Two reports of Dr McMurchy (with documents annexed) dated 28 June 2003 and 3 April 2003.

Mr Teske also gave oral evidence.

The Relevant Legislation

4. The award of DSP is governed by Part 2.3 of the Social Security Act 1991. Section 94 sets the criteria for award of DSP.  Section 94(1) reads:

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.

5.      The “Impairment Tables” are defined in s23(1) as the tables found in Schedule 1B of the Act.  The notes to the Impairment Tables state a condition must be permanent to attract a rating.  That means the condition must be diagnosed, treated and stabilised.

6.      I must consider Mr Teske’s qualification at the date of the cancellation: 16 July 1999.  I note the decision of the Federal Court in Freeman v Secretary, Department of Social Security (1988) 15 ALD 671. Davis J said:

The ambit of the jurisdiction of the Administrative Appeals Tribunal in relation to the review of a decision to cancel a pension or benefit is…less than would be the jurisdiction of the Tribunal in respect of a refusal to grant a pension or benefit…if the Tribunal comes to the view that the decision to cancel was the correct or preferable decision, then no further matter remains for the Tribunal’s consideration.  Any entitlement to of the applicant to a pension or benefit at a subsequent time must be the subject of a further claim…

7.      It follows a decision to cancel DSP is treated differently to a refusal to grant DSP.

Issues

8.      The legislation identifies several issues for the Tribunal’s consideration.  Firstly, on the cancellation date, did Mr Teske’s medical conditions attract a rating of 20 points or more under the Impairment Tables?  (The Tribunal must determine whether those conditions were diagnosed, treated and stabilised in the course of answering this question).  Secondly, did Mr Teske have a continuing inability to work at the cancellation date?

9.      Answers to these questions are found in the medical evidence before the Tribunal.

The medical evidence

10.     Both parties submitted medical evidence for the Tribunal’s attention.  As I noted above, the law requires me to consider the evidence describing Mr Teske’s condition at the date of cancellation.

The medical evidence in favour of the respondent

11. Dr Rolls identified 5 medical conditions in a report dated 27 October 1998 (ff55-71 T8 of the T-documents). He said Mr Teske had fluctuating blood pressure but aded it had not been treated so it could not be regarded as a permanent condition. He said sleep apnoea had also been diagnosed (“by client”, presumably by the applicant) but no sleep studies had been performed.

12.     Dr Rolls diagnosed Mr Teske with urinary problems.  They were treated by his general practitioner with antibiotics, but he had not seen a urologist. He also diagnosed Mr Teske with “industrial deafness” and “old injuries affecting various joints”.  He described Mr Teske’s upper-limb function as “normal” with a “full range of movement”.  When considering lower-limb function, he noted Mr Teske has “pain on weight bearing” and “transfers [e.g. from sitting to standing] with some difficulties”.  Mr Teske experienced pain in his right knee and ankles, Dr Rolls said, after walking over 500 metres.  Dr Rolls also noted Mr Teske’s hands were “work-roughened” and had light calluses.

13.     Dr Rolls gave Mr Teske an impairment rating of zero.   He said Mr Teske was and would remain medically unfit to work as a labourer.  However Dr Rolls said Mr Teske was able to undertake further vocational training that would allow him to work in a less strenuous job.

14. In a report of 20 April 1999 (ff77-90 T13 of the T-documents) Dr Springhall identified similar medical problems concerning Mr Teske’s joints. She wrote of Mr Teske’s problems with pain in his neck, shoulder, back, right knee, ankles and wrists. She also noted Mr Teske experienced a headache “since Xmas”. She referred to Mr Teske’s urinary problems and pointed out he had not yet seen an urologist. She noted Mr Teske had calluses on his hands. (He said in his evidence that they were old ones, from when he used to work.)

15. In a report dated 29 June 1999 (ff97-113 T16 of the T-documents) Dr Yang diagnosed Mr Teske with “multiple symptoms affecting various joints attributed to previous injuries from previous accidents”. He gave Mr Teske an impairment rating of 10 points under table 20 for this condition. He considered the condition to be permanent.

16.     He diagnosed Mr Teske with “migranes/headaches”.  He considered this condition to be temporary, and said Mr Teske would still be able to undertake full-time work.

17.     Dr Yang diagnosed Mr Teske with “urinary symptoms”.  He noted Mr Teske had not yet consulted a urologist.  He considered the condition was temporary and had “no significant impact on work capacity”.

18.     Dr Yang also diagnosed Mr Teske with “industrial deafness”.  He noted clinical evidence suggesting the condition had minimal function impact on communication.  He considered this condition to be temporary. He also diagnosed Mr Teske with “sleep difficulties”.  He considered this condition was not properly diagnosed, investigated or treated, and was temporary. 

19.     Dr Yang also diagnosed Mr Teske with “tinnitus”.  While he considered this condition is diagnosed, treated and stabilised he gave it an impairment rating of 0 points because it had a minimal effect on work ability. He also said Mr Teske suffered from a “psychoactive impairment” in the form of anxiety and stress.  He considered the condition was temporary and had not been properly diagnosed.

20.     Dr Yang gave Mr Teske a total of 10 points under impairment table 20.  He considered Mr Teske was unfit for his usual work, but was fit for more sedentary activities and would benefit from vocational training.

The medical evidence in favour of the applicant

21. In a Treating Doctor’s Report (TDR) dated 26 August 1998 (ff50-54 T7 of the T-documents) Dr Walker diagnosed Mr Teske with two conditions: “old injuries” affecting his joints (specifically aching neck and lower back, right knee and both ankles), and industrial deafness. She described the first condition as long-term and stable, and noted it was being treated with codeine. The second condition was described as long term and deteriorating.

22.     Dr Walker said the applicant would be able to return to work in “more than two years”.  She predicted he would benefit from vocational training – specifically training that would allow him to perform work that is not heavy and physical.  She did not give him an impairment rating.

23. In an undated report (but date-stamped 21 September 2000: ff146-147 T30 of the T-documents) Dr Harte wrote of Mr Teske’s joint conditions and the headaches they caused. He said they caused Mr Teske a “significant loss of quality of life which has caused moderate depression for a significant period of time”. He gave Mr Teske 10 points for neck disability, 10 points for lumbar spine disability, 10 points for lower limb disability of function and 10 points for psychiatric impairment.

24.     At ff148-149 there is a file note written by Carla Wilson, Mr Teske’s (former) representative. The note relates to a telephone conversation with Dr Walker.  Ms Wilson noted: 

Dr Walker returned to the matter of the alleged “fit and well” comment and reflected on this further and then stated “I don’t know that I would ever have said that”.

25.     Ms Wilson was not made available for questioned in relation to the file note.  Dr Walker was not called to give evidence either.  There is nothing to indicate the file note is inaccurate. 

26.     In a report dated 29 July 1993 (exhibit 2) Dr Edwards diagnosed the applicant with “migraines, stress, right wrist pain, right knee pain, right ankle pain, back pain, neck pain, old fractures [and] hearing loss”.  He said they were all likely to last more than 2 years, and none were temporary in nature.

27.     In a report dated 10 November 1998 (exhibit 3) Dr Edwards repeated his earlier opinions, almost verbatim.  He did not assign an impairment rating in these reports.

28.     In a report of 26 March 2003 (exhibit 4) Dr Gillett diagnosed Mr Teske with degeneration of his spine, and pain in both wrists.  He considered these conditions were permanent and stable.  He predicted Mr Teske would not be able to return to work for more than 2 years, but might return to face-to-face study for at least 15 hours per week.  I note this report relates to a period some years after the date of cancellation.  It is of limited value in these proceedings because it tells me little about Mr Teske’s condition as at 16 July 1999.

29.     In a report of 28 June 2003 (exhibit 5) Dr McMurchy diagnosed Mr Teske with degenerative changes in cervical and lumbar spine.  This was a “confirmed diagnosis,” the impact of which was likely to last more than 24 months.  It was also likely to deteriorate. 

30.     Dr McMurchy also diagnosed Mr Teske with anxiety and depression.  This was also a “confirmed diagnosis”, the impact of which was likely to last more than 24 months.  Finally Dr McMurchy diagnosed Mr Teske with a fracture in his right wrist, recurrent headaches and hearing loss.  None of these conditions was expected to improve, and they all impacted on his ability to function.  I note this report also relates to a period some years after the relevant period.

31.     Finally Dr McMurchy wrote a short letter concerning Mr Teske on 3 April 2003 (exhibit 6).  He said Mr Teske has experienced chronic joint pain since 1990.  A copy of records from the Queensland Health Corporate Office indicating the amount of medication Mr Teske has purchased, from September 1997 to March 2003, was attached to the letter from Dr McMurchy.  The medicines are all painkillers.

Consideration of the evidence

32.     There is a large amount of medical evidence.   Much of it is inconsistent.  The applicant has submitted some compelling evidence about his conditions.  However much of his evidence – the reports of Dr McMurchy and that of Dr Gillett – relates to a period some years after the date of cancellation.

33.     On balance the respondent has more evidence that relates to the relevant period.  I have some doubts about the report of Dr Rolls.  He described the pain suffered by Mr Teske but assesses each condition independently of one another.  He makes no assessment of chronic pain.  I understand that Mr Teske has many secondary conditions that cause an overarching condition of chronic pain which is assessed independently under table 20.

34. Mr Teske criticised Dr Rolls’ finding that he had calluses on his hands, and he was therefore working. I think a person can have ceased work several years previously and still retain calluses. (I also note Mr Teske said he still performed odd jobs now and then, which may have caused the calluses). He also disputes that he self-diagnosed sleep apnoea: rather, his general practitioner suggested the diagnosis (see f150 T30 of the T-documents). I accept his evidence on this point.

35.     Dr Rolls was correct not to allot an impairment rating in respect of blood pressure, sleep apnoea and urinary problems as those conditions were not at that point diagnosed, treated and stabilised.

36.     Dr Springhall does not accord an impairment rating.  Her report describes Mr Teske’s pain symptoms, which can be assessed under Table 20.

37.     I have some concerns about the findings of Dr Harte.  He gives Mr Teske a rating of 40 points, including a rating of 10 points for neck disability.  It is not clear whether Dr Harte is working off the Impairment Tables in the Social Security Act 1991.  There is no table for neck disability, although table 5.1 does deal with cervical spine function.  A rating of 10 points under table 5.1 means:

Loss of half of normal range of movement and frequent/constant neck pain or loss of three quarters of normal range of movement with infrequent neck pain.

38.     In his report Dr Harte said “Cervical CT does not show any specific abnormality of discs, facet joints or bones”.  I do not think the evidence justifies a finding that the applicant has lost half of the normal range of movement in his neck.Mr Teske therefore has an impairment rating of 0 under table 5.1.

39.     Dr Harte also gives Mr Teske 10 points for lumbar spine disability.  Under the relevant table (5.2) this rating means:

Loss of one-quarter of normal range of movement as well as back pain or referred pain:

with many physical activities and  with standing for about 30 minutes and with sitting or driving for about 60 minutes. Or Loss of half of normal range of movement.

40.     From the information I have before me I think this rating is excessive.  While I accept Mr Teske is in considerable pain for much of the time, there is little evidence he has lost one-quarter of normal range of movement.

41.     Dr Harte also gives Mr Teske 10 points for lower limb disability of function.  Under table 4 this rating means:

Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or

Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.

42.     The weight of the evidence before me indicates this assessment is also excessive.

43.     Finally Dr Harte gives Mr Teske 10 points for psychiatric impairment.  I am not satisfied that at the relevant period this condition was diagnosed, treated and stabilised.  It should not be given a rating. 

44.     I prefer the report of Dr Yang. He examines all conditions, including chronic pain as a general condition, and awards Mr Teske 10 points under table 20.  That rating means:

Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

Hypertension that is difficult to control despite intensive therapy but without end-organ damage

Potentially life-threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis

Heart/Liver/Kidney transplants - well controlled (well functioning) with only mild systemic symptoms.

45.     I think a rating of 15 points for chronic pain might be justified having regard to all the evidence.  That rating means:

Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.

Potentially life-threatening condition which is currently interfering with daily activities but self-care is unaffected.

46.     However I do not think Mr Teske can be awarded 20 impairment points.  That rating means:

More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

47.     While Mr Teske was unable to work (as a labourer/electrician) there is no evidence he experienced difficulty in carrying out his everyday activities.  My finding about the severity of Mr Teske’s pain is also supported by the evidence regarding the amount of painkillers he has purchased since 1997.

48.     I do not think Mr Teske can be given an impairment rating for any other conditions.  His wrist, ankle, knee, neck and back problems – while painful – do not reach the level of impairment required in any of the relevant tables.  His urinary and psychiatric problems were not diagnosed, treated and stabilised at the relevant time.

Conclusion

49.     At the relevant time, Mr Teske had a maximum of 15 impairment points under table 20.  It is a requirement of eligibility for DSP that he have at least 20 impairment points: s 94(1)(b).  It is therefore not necessary for me to consider whether he had a continuing inability to work.

50.     I note Mr Teske has subsequently been granted DSP.  He is clearly a sick man.  However at the relevant time he could not satisfy the eligibility requirements in s 94.  The decision is therefore affirmed.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:   Thomas Ritchie

Associate 

Date of Hearing: 27 September 2004
Date of Decision: 27 October 2004
The applicant represented himself.
The respondent was represented by Ms Wallis-Dunn, a departmental advocate.