Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 642
•14 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 642
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1559
GENERAL ADMINISTRATIVE DIVISION ) Re DENNIS UEBERGANG Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Senior Member R W Dunne
Professor P L Reilly AO (Member)Date14 September 2011
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – entitlement to disability support pension – whether impairment rating of 20 points or more existed under the Impairment Tables – whether there was “continuing inability to work” – Job Capacity Assessments conducted – report of medical practitioner – decision under review affirmed.
Social Security Act 1991 ss 94(1), (2), (3), (5), Schedule 1B
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635
Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902REASONS FOR DECISION
14 September 2011 Senior Member R W Dunne Professor P L Reilly AO (Member) introduction
1. Mr Dennis Uebergang (“applicant”) lodged a claim for disability support pension (“DSP”) with Centrelink (“respondent”) on 25 November 2009. A medical report dated 23 November 2009 had been prepared by his treating doctor, Dr A M Johnson, whose findings were that Mr Uebergang suffered from the medical condition of chronic fatigue following Q fever. Following a Job Capacity Assessment, Mr Uebergang’s claim for DSP was rejected on 23 December 2009. He requested a review of that decision by an Authorised Review Officer and the Social Security Appeals Tribunal (“SSAT”). They both affirmed the original decision. Mr Uebergang has applied to this Tribunal for review of the decision of the SSAT.
2. At the hearing, Mr Uebergang was self-represented and the respondent was represented by Ms Lee-Anne Odgers (from Centrelink Program Litigation and Review Branch). Mr Uebergang gave evidence, along with oral evidence by telephone given by Ms Sandra Doughney, a friend who resided with Mr Uebergang, and by Dr A M Johnson, a general practitioner. Oral evidence was given for the respondent by Job Capacity Assessors, Mr Damien Venning, physiotherapist, and Mr Bruce Greer, registered psychologist. The T documents lodged pursuant to s 37 of the Administrative Appeal Tribunal Act 1975 were admitted into evidence as Exhibit R1, along with the following exhibits:
·letter from Dr A M Johnson dated 3 November 2010 (Exhibit A1);
·letter from respondent to Dr A M Johnson dated 14 September 2010 (Exhibit R2);
·Job Capacity Assessment Report of Mr Damien Venning and Mr Bruce Greer dated 24 November 2010 (Exhibit R3);
·Job Capacity Assessment Report of Ms Nadezda Asceric dated 19 January 2009 (Exhibit R4);
·Job Capacity Assessment Report of Ms Rachel Clay dated 24 September 2009 (Exhibit R5);
·Job Capacity Assessment Report of Ms Andrea Zoontjens dated 18 August 2010 (Exhibit R6); and
·medical report of Dr A M Johnson dated 13 July 2010 (Exhibit R7).
issue for the tribunal
3. The issue for the Tribunal, in considering s 94 of the Social Security Act 1991 (“Act”), is whether Mr Uebergang was qualified to receive DSP during the period from 25 November 2009 or within 13 weeks thereafter, namely 24 February 2010 (“Relevant Period”). As the respondent accepts:
(a)that Mr Uebergang had a physical, intellectual or psychiatric impairment; and
(b)that the impairment attracted an impairment rating of at least 20 points under the Impairment Tables contained in Schedule 1B of the Act,
the sole issue for the Tribunal is whether Mr Uebergang had a “continuing inability to work”, because of his impairment, during the Relevant Period within the meaning of s 94(1)(c)(i) and s 94(2), (3) and (5) of the Act.
legislation
4. Entitlement to DSP is to be found within the provisions of s 94 of the Act which is reproduced relevantly as follows:
“94 Qualification for DSP
(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 DSP; 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
(f)the person is not qualified for disability support pension under section 94A.
(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.
Note: For work see subsection (5).
(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.
…
(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.
…”
background and evidence of applicant
5. At the time of the hearing, the applicant was 41 years of age. He suffered from chronic fatigue syndrome following Q fever, which had been diagnosed in 1996. A Centrelink Job Capacity Assessment was conducted on 3 December 2009. The medical conditions presented by Mr Uebergang at this Assessment were chronic fatigue syndrome and depression.
6. Following his application for review to this Tribunal, a letter was prepared by the respondent dated 14 September 2010, at the request of Mr Uebergang, seeking additional medical material for the purposes of the review. As a result of the respondent’s letter, Dr Johnson provided a letter dated 3 November 2010 (Exhibit A1) in which Mr Uebergang’s condition was described as “post infection syndrome characterised by extreme fatigue”. A Q fever serology report was attached to Dr Johnson’s letter. On the basis of the additional medical information supplied, a further Job Capacity Assessment was completed by Mr Damien Venning, with Mr Bruce Greer, on 24 November 2010. This Assessment determined that the chronic fatigue syndrome was fully diagnosed, treated and stabilised and should be assigned 20 impairment points under the Impairment Tables. The Assessment determined that the condition of depression was not fully diagnosed, treated and stabilised, and so could not be assigned an impairment rating.
7. It was Mr Uebergang’s evidence that he originally had Q fever and now had post Q fever syndrome. He had never fully recovered from Q fever and has had many treatments, including courses of antibiotics. Although his evidence before the SSAT was that his condition had remained the same for some time, he said there had been a gradual decline and his condition had worsened over a period. He had been depressed for some time and Dr Johnson had prescribed antidepressants. He shared his house with Ms Sandra Doughney, who tended to all the housework while he mowed the lawn and did all the outside chores and the shopping. Most days he would get up at 11:00am, read and work on the computer. After tea he would watch television and would normally go to bed at about 9:00-10:00pm.
8. As to his work history, Mr Uebergang said he had driven a taxi for 6 months some years ago and worked in a mill, grading boards on a casual basis. He had also worked full-time at a dairy for 3 years from 2002, and at a freight company for 3-4 months in 2009, loading milk. When asked about his chronic fatigue, he said he suffered from energy loss and his weight varied and was noticeable in his external appearance. His speech was also slower. His medication at the time of the SSAT hearing included antidepressants, Panadol and Ventolin but, with the latter, only when he had breathing trouble. Presently, he was not taking Ventolin unless it became necessary to do so. He said his depression had been diagnosed by Dr Johnson, but he could not recall when the diagnosis was made. When asked about his work ability, he said currently he could only work about 2 hours per day. He took issue with the number of work hours that had been assessed in the November 2010 Job Capacity Assessment Report.
9. When questioned, Mr Uebergang said he worked 30 to 40 hours per week when he worked in the dairy between 2002 and 2005. However, he did this because he had to work to live. He always felt fatigued and said he thought that he developed depression as a result. He did not know when his depression commenced, but he believed it was 3 or 4 years before he first spoke to Dr Johnson about it. Dr Johnson prescribed Seralene or Cortex about a year ago and he was taking about one tablet a day now, sometimes less, and this medication did ease things for him. He read books and manuscripts, his particular interest being books about computer businesses, which he did his best to read. He then said he took Osteo to relieve his muscle soreness, which he took three times a day. He had also been put on to homeopathic remedies by “Ava Able”. When further questioned by the Tribunal he said he had a computer and spent one or two hours a day on it using E-Bay, sending and receiving emails and sometimes more.
10. In cross-examination by Ms Odgers, Mr Uebergang confirmed that, in the past, he had worked as a taxi driver, a dairy freight specialist and in preparing feedlots. He last worked in 2009 for a freight company in their factory for 8-9 months. The period he worked varied between 10-30 hours per week. He said he could do light work, depending on what was involved. He could work longer hours in the IT area and was interested in training for IT, setting up websites. He expected he could work in IT for 4-5 hours per day. He agreed with Dr Johnson’s statement that his condition waxed and waned, but the fatigue was an ongoing problem.
evidence of ms doughney
11. Ms Doughney’s evidence was that she had boarded with Mr Uebergang at his home in Mount Gambier for the last 9 years. She said he was always very tired, he slept a lot and had no energy. At the home, she worked inside and Mr Uebergang worked outside. Maintenance around the home was undertaken by others. He suffered physical pain in his limbs and his tiredness had got worse over time. To relax, he read and worked on the internet, usually for 1-2 hours each day. Over the past 5 years, his energy level had been about the same. In cross-examination, she said his work had involved milking cows, taxi-driving and working with a milk tanker on a part-time/casual basis.
evidence of mr venning
12. Mr Venning’s evidence was that he had been asked to undertake a Job Capacity Assessment of Mr Uebergang, to look at the permanency of his medical conditions and whether the conditions had been fully diagnosed, treated and stabilised. Then, he would determine an impairment rating, assess his work capacity and identify any non-medical barriers. In making the Assessment, he said he had determined that the chronic fatigue syndrome was permanent and was fully diagnosed, treated and stabilised and should be assigned 20 impairment points. The depression was reactive and was not fully diagnosed, treated and stabilised, so it could not be assigned an impairment rating.
13. As to work capacity, Mr Venning determined that, although Mr Uebergang had a temporary reduced work capacity of 0-7 hours per week, he had previously been engaged in physically demanding work, including work in an administration role for 8-9 months, 20 hours per week, at a factory ending in March 2009, when there was no work. As he had not reported a worsening of his post Q fever syndrome, his current and future work capacity (with or without intervention) was 15-22 hours per week (Exhibit R3, page 8).
evidence of dr a m johnson
14. In cross-examination by Ms Odgers, Dr Johnson was referred to his report dated 3 November 2010 (Exhibit A1). He acknowledged that this report related to conditions that existed during the Relevant Period. He said he first saw Mr Uebergang on 14 October 1999 when he showed symptoms of post Q fever. He did not see him again between 20 December 2001 and 25 June 2007. He did not diagnose Q fever himself. It had been earlier diagnosed serologically. Then, in his treating doctor’s report dated 23 November 2009 he described Mr Uebergang’s condition with the most impact as being chronic fatigue following Q fever. Current symptoms were fatigue, muscle soreness and myalgia arthralgia persisting for more than 24 months. This might fluctuate functionally.
15. In his treating doctor’s report dated 13 January 2010, Dr Johnson described Mr Uebergang’s main impact condition as post Q fever syndrome. He said there was not a lot of descriptive information about this syndrome, which was a “nebulous idea”, and did not strictly fulfil the criteria for chronic fatigue. He had commenced prescribing antidepressants, which he had not done previously, to do something to help. There was not a significant deterioration in depression and his symptoms were stable in point of time. In his later treating doctor’s report dated 13 July 2010, he had included a separate diagnosis for depression. He said he was unsure whether there was a separate condition or whether it had arisen out of Q fever.
16. Ms Odgers again referred Dr Johnson to his report dated 3 November 2010. He said Mr Uebergang had an impairment and he assessed him as having a rating of 20 points under Table 20 of the Impairment Tables. However, he was unsure whether he actually suffered from depression, but he was still being prescribed antidepressants. He had given no consideration to other forms of treatment. Mr Uebergang had never sought other treatments, but he would probably not benefit from them. He said that, if he knew Mr Uebergang had worked for significant periods over the period of his treatment, his view about his post Q fever syndrome would be different. He thought he might be able to do light work and may be capable of doing IT work at a computer.
17. When questioned by the Tribunal, Dr Johnson said that, as Mr Uebergang’s depression was more recent, it was possible that his diagnosis was largely due to post Q fever syndrome. As this condition waxed and waned, he could not say it had worsened over time.
evidence of mr greer
18. Mr Greer’s evidence, given at a time later than Mr Venning’s evidence, was that he had been required to undertake a Job Capacity Assessment in November 2010 after Mr Uebergang had appealed to the SSAT and had provided further medical information. The reference date for the Assessment was 25 November 2009 plus 13 weeks thereafter. He confirmed that Mr Uebergang suffered from post Q fever syndrome and depression. The former was considered permanent and fully diagnosed, treated and stabilised and a 20 point impairment rating was appropriate. The latter, although considered permanent, was not fully treated or stabilised and could not be rated under the Impairment Tables. According to the SSAT decision, Mr Uebergang had commenced antidepressant medication in January 2010 and had not had any recent psychological intervention or counselling to the date of the Assessment.
19. Mr Greer said he had also been required to assess Mr Uebergang’s work capacity, that is, work in an open employment setting at award rates in any type of work that was reasonably available. It would be assessed in band widths of hours, such as 0-7 hours, 7-14 hours, 15-22 hours per week, looked at for up to two years with ongoing specialist support. Based on a fully diagnosed, treated and stabilised work capacity, with or without intervention, where there was no reported worsening of his post Q fever symptoms and a work history within the band width of 15-22 hours, a future work capacity of 15-22 hours per week for Mr Uebergang was assessed. As to the type of work, light or sedentary work would be better suited to his medical conditions. With the provision of support from a disability support provider for up to two years, who could tailor work to match his abilities and his disabilities, he would be able to sustain employment much better than he had in the past. On the basis of his assessment, it was Mr Greer’s view that Mr Uebergang would not satisfy the requirements for DSP at the date of his claim or within 13 weeks thereafter.
consideration
Did the applicant have a “continuing inability to work” because of his impairment at the time he applied for DSP on 25 November 2009 or within a period of 13 weeks from the date of his claim?
20. In order to qualify for DSP, Mr Uebergang must satisfy the relevant requirements of s 94(1) of the Act. It is accepted (and the Tribunal is satisfied) that, during the Relevant Period, Mr Uebergang satisfied paragraphs (a), (b), (d), (e) and (f) of s 94(1) of the Act. It follows that he will qualify for DSP if, pursuant to 94(1)(c)(i), he has a continuing inability to work. And in this regard:
(a) the Tribunal (upon review) is not to have regard to the availability to Mr Uebergang of work in his locally accessible labour market; and
(b) “work” means work that exists in Australia, even if not within Mr Uebergang’s locally accessible labour market.
21. Under s 94(1)(c)(i) of the Act, when read with s 94(5) (as those provisions existed at the time Mr Uebergang applied for DSP), a person had a “continuing inability to work” because of an impairment if the Secretary (or the Tribunal) was satisfied that the impairment was of itself sufficient to prevent the person from doing any work within the next two years, and the impairment was of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next two years. Under s 94(5) and in Mr Uebergang’s case, “work” meant work that was for at least 15 hours per week in Australia at award wages or above. In Secretary, Department of Social Security v Pusnjak [1999] FCA 994, Drummond J (in the Federal Court) considered the operation of s 94(2) of the Act. At paragraphs 31 and 32 of his decision, the learned Judge said:
“31 If, as I think it should be, s 94(2)(a) directs the Secretary to confine his determination to whether the impairment of itself is sufficient to prevent the person from doing any work that may be available anywhere in Australia, being work for which that particular person is already fitted without first requiring some form of occupational retraining, s 94(2)(b) then, logically enough, moves on to identifying what impact the availability of occupational retraining is to have on the eligibility of the particular applicant for a disability support pension who surmounts the first hurdle of s 94(2)(a).
32 Effect will be given to the intention of legislation if the Secretary asks the following questions as he works his way through the various paragraphs of s 94(2):
As to s 94(2)(a) Does the impairment of itself, ie, considered in isolation from other matters that may influence his attitude to working, have such an impact on the particular claimant's capacity for work that it prevents him from doing work available anywhere in Australia, being work of a kind which the particular applicant is, by reason of his existing work skills and experience, capable of performing, without the need for retraining? If so:
As to s 94(2)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next two years, retraining of a kind that is available to him and which would fit him for a class of work available in Australia that he currently lacks the skills or experience to perform, even if unimpaired?
If so, the applicant will satisfy the Secretary that he has the requisite continuing inability to work. …”
22. Ms Odgers submitted (and the Tribunal accepts) that only permanent conditions can be taken into account in determining whether a person has a continuing inability to work. In Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500, the Full Federal Court (Drummond, Kiefel and Dowsett JJ) said [at paragraph 22]:
“22 Obviously enough, subs 94(2) is intended to define the expression "continuing inability to work" for the purposes of par 94(1)(c). It is of interest that the expression defined in subs 94(2) is "a continuing inability to work because of an impairment". Impairment is referred to in pars 94(1)(a) and (b) but not in conjunction with the expression "a continuing inability to work" in par 94(1)(c). Its presence in subs 94(2) demonstrates that the continuing inability referred to in subpar 94(1)(c)(i) must be the result of the impairment referred to in pars 94(1)(a) and (b). …”
23. It was Ms Odgers’ view, which she said was supported by Dr Johnson’s evidence, that in Mr Uebergang’s case there were two separate albeit intertwined conditions, being post Q fever syndrome with a “depression overlay”. She said that during the Relevant Period the depression was not fully diagnosed, treated and stabilised. At that time, Mr Uebergang had only recently commenced treatment in the form of antidepressants. In his report dated 23 November 2009 (Exhibit R1, T9), Dr Johnson made no reference to depression as a symptom associated with post Q fever syndrome. However, in his report dated 13 January 2010 (Exhibit R1, T10), depression was referred to as a symptom of post Q fever. As was mentioned by Mr Greer in the Job Capacity Assessment Report, other reasonable treatments were available to Mr Uebergang (in the form of cognitive behaviour therapy or other intensive evidence based counselling interventions) which would be likely to significantly improve depressive symptoms, particularly with respect to re-active types of depression from which Mr Uebergang suffered. In his evidence, Dr Johnson agreed that other forms of treatment may be appropriate and were worthwhile pursuing. Ms Odgers submitted that, in these circumstances, the depression was not such that it could be considered fully diagnosed, treated and stabilised. It was also pertinent that, as the condition was not fully diagnosed, treated and stabilised, it could not be taken into account in considering whether Mr Uebergang had a continuing inability to work. Hence, only the post Q fever/chronic fatigue syndrome was all that was available in considering whether Mr Uebergang had a continuing inability to work in the Relevant Period.
24. Ms Odgers submitted further that none of the evidence before the Tribunal, including the evidence of Dr Johnson, indicated that Mr Uebergang had a total incapacity for work, when that criterion was considered. It was not expected that Mr Uebergang should perform his usual occupation but, as s 94 required, the test was not his usual occupation but “any occupation”. As Mr Greer pointed out, Mr Uebergang had a history of work with the post Q fever syndrome in existence and a lighter workload was likely to be open to him. In this regard, the Tribunal noted that Mr Uebergang had engaged in work whilst suffering from post Q fever prior to making his claim for DSP. In these circumstances, Ms Odgers submitted (and the Tribunal accepts) that, at the relevant time, Mr Uebergang did not satisfy the requirements of s 94(1)(c)(i) of the Act in that he did not have a continuing inability to work. Ms Odgers also pointed out that there had been a second claim for DSP after the present application, which had also been rejected by the respondent. In doing so, the respondent had looked forward in time and, as such, there had been no change in Mr Uebergang’s conditions since 25 November 2009. In response to Ms Odgers’ submissions, Mr Uebergang said that he had ceased working at the times she had referred to because he could not keep up with the work required, which was why he was no longer working in the positions that had been referred to. He had been put off from the jobs because he had been unable to keep up with the technical work demands that had been imposed on him.
25. In their Job Capacity Assessment Report (Exhibit R3, page 8), Mr Venning and Mr Greer made the following comments in relation to Mr Uebergang’s Current Baseline Work Capacity and his Future Work Capacity within two years, both with and without intervention. They assessed his capacity in each case as 15-22 hours per week and, in doing so, made the following observations:
“Mr Uebergang has previously worked in physically demanding work, such as at a freight company, loading milk for 3-4 months, 2 years ago, and working in a[n] admin role for 8-9 months, 20 hours per week, at a factory, ending in March 2009, when there was no more work. In the SSAT report, Mr Uebergang reported that he had worked for three years in 2002 ‘full time’ with the condition of post Q-fever syndrome. As Mr Uebergang has not reported, at any time, a worsening of his symptoms from his post Q-fever syndrome, and in fact reported to the SSAT that ‘the condition has remained the same for some time’, and no medical evidence suggests that there has been a worsening, his FDTS baseline work capacity, from previous history, is assessed as 15-22 hours per week. The FDTS current baseline work capacity is reduced due to a FDTS permanent condition, namely post Q-fever syndrome, which effects [sic] his ability to persist at work activities particularly the activities which are more physical in nature. The previous SSAT findings are consistent with a 15-22 hours per week current baseline work capacity. The current assessors agree with the comments in the SSAT report that ‘it is logical to expect that Mr Uebergang would be able to work with less difficulty in sedentary or lighter work. Consequently the Tribunal’s opinion is that it needs to be tested as to whether Mr Uebergang can manage lighter less physical jobs’.”
26. There were no inconsistencies in the oral evidence given by Dr Johnson. Mr Uebergang acknowledged that his Q fever syndrome had not worsened and he agreed with Dr Johnson’s view that it had “waxed and waned”. Dr Johnson’s diagnosis of depression suggested that the condition was reactive and that he had commenced prescribing antidepressants “to do something to help”. In relation to work capacity, he did not have an opinion which substantially differed from those of Mr Venning and Mr Greer. Dr Johnson acknowledged that Mr Uebergang would benefit from the treatment and interventions proposed by the assessors in their report.
27. In relation to the phrase “any work” in s 94(2)(a) of the Act, the Tribunal notes that this phrase ought not be qualified to mean “suitable work” (see Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864 at paragraph [34]), and the phrase did not exclude types of employment that a person might consider insufficiently intellectually challenging or were, in the person’s view, insufficiently challenging (see Croker v Secretary, Department of Employment and Workplace Relations [2007] FCA 1635 at paragraph [27]. The Tribunal was reminded that, in his evidence, Mr Uebergang had said he expected he could work in IT for 4-5 hours per day.
28. The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity. In Re Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902, Mr S C Fisher, Member, recognised the different approaches taken by medical practitioners and work capacity assessors and preferred the evidence of the work capacity assessor as to the applicant’s capacity to work or undertake retraining. At paragraph 43 of his reasons, the learned Member 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 been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.”
29. In reviewing all the material before it, the Tribunal prefers the evidence and opinions of Mr Venning and Mr Greer in their Job Capacity Assessment Report. None of the evidence of Dr Johnson contradicts what is said in that report or in the evidence given by Mr Venning and Mr Greer, and much of what Dr Johnson said supports the recommendations made by the assessors.
30. To summarise, on the evidence before it, the Tribunal is not satisfied that Mr Uebergang had a continuing inability to work during the Relevant Period and thus does not satisfy the requirements of s 94(1)(c)(i) of the Act.
decision
31. For the reasons set out above, the Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: ............J Coulthard....................................
AssociateDates of Hearing 31 March 2011 and 5 July 2011
Date of Decision 14 September 2011
Advocate for the Applicant Self-representedAdvocate for the Respondent Ms L Odgers
Centrelink Program Litigation and Review Branch
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