Wayne Krieger and Secretary, Department of Social Services
[2014] AATA 799
•29 October 2014
[2014] AATA 799
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0106
Re
Wayne Krieger
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member N A Manetta
Date 29 October 2014 Place Adelaide The decision under review is affirmed.
..........................[Sgd]..............................................
Senior Member N A Manetta
CATCHWORDS
SOCIAL SECURITY - pensions benefits and allowances - Disability Support Pension - whether conditions warrant 20 points - whether continuing inability to work - decision refusing pension affirmed.
LEGISLATION
Social Security Act 1991 s 94, Schedule 1B
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member N A Manetta
29 October 2014
This is an application by Mr Wayne Krieger for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 4 December 2012. The SSAT affirmed decisions taken within the respondent’s department that both of Mr Krieger’s two applications for a disability support pension (DSP), dated 25 January 2011[1] and 10 April 2012 respectively, should be rejected. Hearing the matter afresh on the evidence before me,[2] I must decide whether Mr Krieger meets the criteria under the Social Security Act, 1991 (the Act). Eligibility is required to be assessed in accordance with the so-called Impairment Tables. These changed between the dates of the two applications. The first application was decided under the tables in Schedule 1B of the Act before their removal from the Act; the second application under the tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. I shall refer to the former as the “old tables” and the latter as the “new tables”.
[1] The SSAT’s decision refers to applications having been made on 25 January 2011 and 10 April 2012, but the documents lodged with the Tribunal under section 37 of the Administrative Appeals Tribunal Act, 1975, the T documents, contain applications dated 7 February 2011 and 10 April 2012. There are references (for example, at T6, page 114) to an application lodged on 25 January 2011. I have assumed the wrong application was included in the T documents, but I did not need to see the original claim form to decide Mr Krieger’s application to the Tribunal.
[2] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
STATEMENT OF CONCLUSION
In my opinion, Mr Krieger has not established eligibility for a DSP under either the old or new tables and has otherwise not satisfied me that he is incapacitated for work to the requisite degree. I set out below the background facts and then my reasons for this conclusion.
BACKGROUND FACTS
Medical conditions
Mr Krieger has four conditions relevant to a consideration of his DSP applications:
(a)A past dependence on alcohol;
(b)A minor heart condition;
(c)A “carpel tunnel” condition (i.e. a loss of dexterity in his fingertips); and
(d)A lumbar condition.
Work history
Mr Krieger gave the following evidence. He is now in his mid-forties. He finished his schooling in about 1982 and began work at the Vine Inn Hotel at Nuriootpa. His duties there as the “yard person” involved replenishing the fridges, stock control, the disposal of rubbish, and general outdoor maintenance. He had an accident in 1984 and was off work for six weeks, but then returned to his duties. He cannot remember when he finished up at the hotel or why.
In 1991 the Angaston District Council employed him as a general labourer. He was involved in rubbish collection full-time. He worked with the Council for some nine years, until 2000. He stopped work at that point to look after his elderly mother.
He gave evidence that he undertook a good deal of study at this time. He did a vineyard course comprising all active aspects of running a vineyard, including planting, erecting post-and-wire fencing, and pruning. He completed an occupational health and safety course. He has a licence permitting him to drive a two tonne fork-lift (which is apparently the first grade of fork-lift licensing). In the 1980s he undertook waiting courses and also studied food and beverages. In 2005 he worked as a general labourer at the Stockwell Hotel as part of a “work-for-the-dole” scheme. He was there for eight months approximately and left after a disagreement with management.
He worked for the Salvation Army in, he thinks, about 2008 managing their shop in Angaston. In 2007, Mr Krieger fell from a ladder and broke an arm and wrist whilst working for an organisation called Community Service Helpers. He has not worked since, apart from, it would appear, his shop-management experience with the Salvation Army.
Limitations
He gave evidence that when he stands or sits for lengthy periods, he gets spasms. He lives by himself and says that he has some difficulty lifting supermarket items. His brother-in-law mows his lawns. He washes his own clothes and prepares his own meals, however. He can stand for about a half an hour before he feels uncomfortable but can sit for one and a half to two hours before feeling any discomfort. He has been prescribed Tramadol for pain relief and this is partially effective. He takes it up to four times a day. He says he sleeps three hours only at night and has become accustomed to sleep deprivation.
He referred in his evidence to a heart condition. He gave evidence that his treating specialist had diagnosed a blocked artery. He said he was admitted to the Royal Adelaide Hospital for a stent operation, but the blockage was not seen to be serious enough to warrant the procedure. He is receiving no ongoing specialist treatment for his heart condition.
He has had physiotherapy, but he gave evidence that it has not assisted him. His left wrist pain can come on at any time. He can reach for objects at knee length but does get dizzy. He is able to get in and out of chairs, but visitors to his home will sometimes assist. In 2012 Dr Ryan gave him an exercise program but he says it has not helped.
He accepts that he is able to work at least part-time in a shop performing the duties he formerly performed for the Salvation Army provided no heavy lifting is involved. He gave evidence that he can lift three kilograms comfortably but no more than that.
MR KRIEGER’S SUBMISSION
Mr Krieger indicated that in the “T” documents there are extracts from the old tables where point categories have been circled with initials alongside. He maintains that Dr Ryan did this as a shorthand way of indicating his view of the appropriate degree of impairment. Mr Krieger said that he thought the form must go back to a time before he had given up drinking, because the 20-point category in respect of alcohol dependence had been circled by Dr Ryan. It was not put to Mr Krieger that he had himself circled the categories and so I was unable to assess his response to a direct question in that regard. I think it is only fair that I assume in Mr Krieger’s favour that Dr Ryan did in fact circle and initial the categories.
Mr Krieger maintains that he is entitled to 10 points for alcohol dependence under both old and new tables; 10 points for his lumbar condition under both old and new tables; and 15 points for his heart under the old tables, and 10 points under the new. In his view he cannot perform labouring work without assistance but, as noted, he does concede he can work in a shop without heavy lifting for up to 15 hours a week.
ASSESSING THE DEGREE OF IMPAIRMENT UNDER THE OLD TABLES
I set out below my findings in respect of each of Mr Krieger’s conditions under the old tables.
(i) Alcohol dependence
In his letter dated 5 December 2012, Dr Ryan notes that Mr Krieger underwent alcohol detoxification in February 2010.[3] He notes that to Mr Krieger’s “continuing credit, he has been sober since this time.” I noted above Mr Krieger’s submission that Dr Ryan had suggested 20 points under the old tables,[4] but that this opinion must have been formed before his detoxification. Whether that is so or not, it is clear that the 20-point classification can only be assigned when there is a proven current dependence. At the time of his first application, Mr Krieger had been continuously sober for more than a year. I do not see a basis for awarding any points under this table.
[3] Exhibit R1, T8 p 166.
[4] Exhibit R1, T9 p.186.
Dr Ryan further noted in that letter that
“[t]here may be some cognitive functional impairment from his past very heavy alcohol use but this has not been formally tested. A neuropsychologist would be best placed to assess this but could [sic] result in up to 10 points in the table. …”
The old tables make it clear[5] that “a rating may only be assigned after a comprehensive history and examination.” I do not think I can award any points under the old tables in respect of any functional impairment from his past alcohol misuse because that impairment has not been appropriately tested.
[5] See INTRODUCTION para [4].
(ii) Heart condition
Dr Ryan has apparently circled 15 points in Table 20. Table 20 is not the correct table, however. Table 20 is used for miscellaneous conditions, and a heart or liver transplant is mentioned. Table 1 is the appropriate table in Mr Krieger’s circumstances as it concerns explicitly the loss of cardiovascular and respiratory function. Dr Ryan ought to have addressed Table 1. For whatever reason, Dr Ryan has simply applied the wrong table. I do not award any points under Table 20.
In his 2012 letter, Dr Ryan notes that Mr Krieger underwent coronary angiography in 2011 after complaining of chest pain. Dr Ryan records that “this has not revealed any significant coronary artery disease”. I do not award any points under Table 1 given Dr Ryan’s letter saying there is no significant heart disease, and given also the absence of any evidence that Mr Krieger’s impairment has been assessed under the Table. Once again, I note a rating is only to be assigned after a comprehensive history and examination.
(iii) Carpel tunnel condition (i.e. loss of dexterity)
This was given a nil rating by Dr Ryan[6] under the old tables, and this is consistent with his later letter of 5 December 2012. Mr Krieger did not submit he ought to receive any points in this respect, and I conclude that no points should be awarded.
[6] Exhibit R1, T8 p 194.
(iv) Lumbar pain
Mr Krieger maintains Dr Ryan circled 10 points under Table 5. Dr Ryan notes in his letter of 2012 that a CT scan of his lumbar spine revealed minor degenerative change only which was “unremarkable” given his age. Nevertheless, he noted at that time that Mr Krieger suffers “subjectively” from lumbar back pain. This rather suggests to me that Mr Krieger’s subjective experience of pain has psychological rather than physical causes. Be that as it may, and on the assumption that the condition was “fully investigated, treated and stabilised”,[7] I have no evidence to justify awarding more than the ten points suggested by Dr Ryan.
[7] See INTRODUCTION at para [4].
I note here that I had thought the fifteen points apparently suggested by Dr Ryan under Table 20 may have been intended by him to relate to Mr Krieger’s lumbar condition rather than to his heart condition. If so, I note that the points under Table 20 cannot be added to points under Table 5. Table 20 should only be used instead of Table 5 when the use of Table 5 would underestimate the effect of chronic entrenched pain.[8] There is no evidence that Dr Ryan understood this limitation if, indeed, he had intended to use Table 20 to rate the lumbar condition.
[8] See INTRODUCTION at para [8].
All in all, on the state of the evidence before me, I am only prepared to award 10 points, but it would not matter to Mr Krieger if I awarded him 15 points in this regard: he would still fall short of 20 points.
Conclusion under old tables
My conclusion is that Mr Krieger has failed to persuade me that he ought to receive 20 points under the old tables.
ASSESSING THE DEGREE OF IMPAIRMENT UNDER THE NEW TABLES
I now set out my findings in respect of each of Mr Krieger’s conditions under the new tables.
(i) Alcohol dependence
Table 6 is the appropriate table. It is clear from the Introduction that it was not intended to apply to those who are no longer dependent. Mr Krieger cannot receive points under this table.
Other tables are intended to be used to assess long-term impairments for former users of alcohol. The example of neurological damage is specifically cited. Reference is made to the use in that circumstance of Table 7. As noted above, there is no reliable confirmatory evidence that Mr Krieger does suffer from any neurological impairment.
Accordingly, I do not award any points in respect of Mr Krieger’s former alcohol misuse or in relation to any possible, but as yet unproven, neurological deficits.
(ii) Heart condition
I note again that in his letter of 2012, Dr Ryan refers to the absence of any significant heart disease. Mr Krieger’s heart condition is properly assessed under Table 1.[9] The table requires corroborating evidence of the person’s impairment, which can include a report from a treating doctor.[10] There is no corroborating evidence from Dr Ryan concerning the degree of impairment. There is no other corroborating evidence in the form of, for example, stress testing. In the circumstances, I do not award any points here.
[9] See Part 2, section 10(2) of the new tables, which requires that the table “specific to the impairment being rated must always be applied” in the absence of contrary instructions in a table.
[10] See also Part 2, section 8 of the new tables.
(iii) Carpel tunnel condition (i.e., loss of dexterity)
For the reasons given above at [19], no points should be awarded in my opinion.
(iv) Lumbar pain
Spinal function is assessed under Table 4. The relevant possibilities are nil points, 5 points, 10 points, 20 points or 30 points. There is no possibility of 15 points. I am satisfied that Mr Krieger is not eligible to receive 20 points.[11] This would require confirmation of a severe functional impact on activities. The person must be unable to perform any overhead activities; turn their head, or bend their neck, without moving their trunk; or bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes. That is not consistent with Mr Krieger’s own evidence as to his capacity. Furthermore, Dr Ryan’s letter of December 2012 rates the incapacity at 5 points only.
[11] And not 30 points either.
I need not decide what the appropriate rating is. It is sufficient that there is no corroborating evidence warranting 20 points.
Conclusion under new tables
My conclusion is that Mr Krieger has failed to persuade me that he should receive 20 points under the new tables.
CONCLUSION ON ELIGIBILITY
Given the requirement of a minimum of 20 points,[12] it follows from my conclusions so far that Mr Krieger is ineligible to receive a DSP no matter which tables are applied.
[12] See section 94(1)(b) of the Act.
INCAPACITY TO WORK
I need deal with this issue only briefly given my conclusion with respect to impairment points. Assuming everything else in his favour, I must be satisfied that Mr Krieger was prevented by the impairment (or impairments) caused by his eligible medical conditions from working at least 15 hours per week on wages that are at, or above, the relevant minimum wage. I am to consider any work in Australia, even work outside his labour market.[13]
[13] See s.94(5) of the Act (definition of “work”).
As I have noted, Mr Krieger accepted that he does have the physical capacity to work as a shop assistant provided no heavy lifting is involved. This is an area in which he has had experience. It may well be the case that Mr Krieger is most unlikely to be employed. I refer here to a letter he tendered from Advanced Personnel Management dated 10 September 2013[14] stating that Mr Krieger “… has been extensively reverse marketed to employers all over the Barossa Valley to no avail”. Nevertheless, the relevant test is clearly directed to incapacity to work, not the likelihood of securing employment. I do not find this statutory requirement satisfied in Mr Krieger’s case.
[14] Exhibit A1.
There is no need for me to consider other statutory criteria.
DECISION
The SSAT’s decision will be affirmed.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta .........................[Sgd]...............................................
Administrative Assistant
Dated 29 October 2014
Date(s) of hearing 2 June 2014 Applicant In person Advocate for the Respondent Mr C Visser Solicitors for the Respondent Department of Human Services
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