Williams and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1543
•12 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1543
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/698
GENERAL ADMINISTRATIVE DIVISION ) Re MR KIMBERLEY WILLIAMS Applicant
And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr M Denovan, Member Date12 July 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................[Sgd]........................
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – medical evidence – insufficient evidence to make a finding on the appropriate impairment rating – evidence presented suggesting the applicant is capable of working 30 hours or more a week – decision affirmed
Social Security (Administration) Act 1999 (Cth) Schedule 2, s 4
Social Security Act 1991 (Cth) ss 94, Schedule 1BAdministrative Appeals Tribunal Act 1975 (Cth) s 37
REASONS FOR DECISION
12 July 2007 Dr M Denovan, Member Introduction
1. Mr Kimberley Williams has bilateral scaphoid injuries and torn anterior and posterior cruciate ligaments in the right knee. I have to decide whether he is entitled to receive disability support pension in respect of these conditions.
Background
2. Mr Williams lodged a claim for disability support pension (T15) on 9 November 2005. Centrelink rejected the claim on 21 March 2006.
3. On 2 May 2006 the original decision maker affirmed the decision. On 30 May 2006 an authorised review officer also affirmed the decision.
4. On 17 July 2006 the applicant applied to the Social Security Appeals Tribunal (SSAT) for review of the decision. The decision was affirmed by the SSAT on 31 August 2006.
5. The application for review by the Administrative Appeals Tribunal was lodged on 29 September 2006.
Issues for Determination
6. I have to consider whether Mr Williams is entitled to disability support pension in respect of scaphoid injury and torn anterior and posterior cruciate ligaments in the right knee. Under Schedule 2, section 4(1) of the Social Security (Administration) Act 1999 if the applicant does not qualify for disability support pension on the day on which he made the claim, but qualifies for it within the next 13 weeks, he is taken to qualify for it. He therefore needs to meet the criteria for disability support pension within the period of 13 weeks after the day on which the claim is made, that is from 9 November 2005 to 8 February 2006.
7. To qualify for disability support pension the applicant needs to meet the criteria set out in s 94 of the Social Security Act 1991 (the Act), that is:
·he must have a physical, intellectual or psychiatric impairment;
·his impairment must have been of 20 points or more under the Impairment Tables; and
·he must have a continuing inability to work.
Material Before The Tribunal
The following documents were admitted into evidence:
·Exhibit 1 T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975
·Exhibit 2 Letter to the Administrative Appeals Tribunal from the applicant, received 23 March 2007
Evidence Of The Applicant
8. Mr Williams provided the following evidence at the hearing.
·Mr Williams is not happy about Centrelink’s management of his case. He believes the ARO who considered the decision under review was not unbiased as she had been involved in previous matters involving himself. Mr Williams said that when interviewed by Ms Trapp he enquired about her qualifications, and he now feels that because of this he was treated as a problem.
·Mr Williams believes his assessment should have been performed by medically qualified persons, or the assessor should have at least made more enquiries of medically qualified persons familiar with his medical conditions. Mr Williams said that he had several x-ray reports however no one from Centrelink or the SSAT had examined these. He believes that the x-rays demonstrate the severity of his conditions and establish that he is unable to work.
·Mr Williams said that he was seen by orthopaedic surgeon Dr Dodd, and provided a copy of a report from that doctor to Centrelink. Dr Dodd told him that he needs an operation on his knee because of damaged cartilage and ligaments. That operation is likely to cost $26,000, and without the operation his knee is going to get worse, not better. Mr Williams cannot afford the operation. Mr Williams said his knee swells up, to the extent that he is unable to get his trousers leg on. He said that he cannot walk 1.5 km, and were he to do so, he would not walk at all afterwards for three to four days. He did not tell Ms Trapp that he could walk 1.5 km. Whilst he does walk the neighbour’s small dog occasionally, this is not an activity he performs regularly and Ms Trapp took his words out of context. Some days he can walk up to 100 metres. His knee feels like jelly and often prevents him from walking. Mr Williams said that he lives in pain, however he does not take pain killers, as he considers the side effects to be unsafe. He is also aware that pain relieving medication is not necessarily going to fix things up. He prefers to be careful and avoid activities that might further aggravate his wrists and knees. Mr Williams believes that the tendon in his knee runs all the way up his body. He is not able to carry much weight due to the pain.
·His wrists get swollen and painful however there is not much his doctor can do. On a good day he can hold a cup of coffee. He said that he carried his bag into the hearing over his shoulder.
·Mr Williams said that without assistance from Centrelink he obtained a real estate salespersons licence. He was unable to maintain that because of lack of money. He worked as a sales person for a family business for some months however was unable to do a full day because his leg would get too swollen. He was limited to phone work. He thinks he could perform telemarketing work for a maximum of two to three hours a day because his hands get sore. He had attempted sales work because he felt his medical conditions prevented him from working in his usual occupation of animal husbandry. He cannot perform a full day’s work for various reasons, one of which is that he must get up early as it takes him one hour to warm up his wrists. Were he to work four hours, he would need the next day off.
·Mr Williams does not do a great deal of shopping. He eats at the Southport Workers Club once a day. He came to the hearing by car, and arrived early in order to get a close car park. He has two flat mates who know that he cannot perform tasks such as vacuuming.
Medical Evidence
9. Accompanying Mr Williams’ claim was a treating doctor’s report from Dr House. Dr House identified fractured scaphoid right side, identified the current symptoms as pain and loss of function, and said that the applicant’s ability to function is affected by this condition because he can’t use his right upper limb for functioning. Dr House said that the condition was expected to persist for more than 24 months, unchanged, and over five years will deteriorate.
10. Dr House also identified torn anterior and posterior cruciate ligaments right knee, which he said resulted in swelling and pain on a weekly basis. Dr House said that the condition affects the applicant’s capacity to function because he has unstable knees on weight bearing and walking. Dr House opined that the condition would deteriorate and persist for more than 24 months.
11. In a medical certificate dated 4 June 2005 Dr House has indicated Mr Williams suffers from bilateral scaphoid fractures, associated with weakness and pain in both wrists, and that this is a permanent condition which is likely to persist (T6).
Work Capacity/Participation Assessment
12. On 31 January 2006 Mr Williams was assessed by Martina Trapp, a rehabilitation consultant, at Advanced Personnel Management. In that report Ms Trapp noted that the applicant reported difficulty holding a pen for long periods, advised that he was independent in regard to self-care and household duties, and reported that he used his left hand for household duties such as vacuuming, mopping and sweeping. Ms Trapp noted the applicant walked his neighbour’s dogs daily to stop them barking, advised that he could drive a car for 30-40 minutes and that he can carry light grocery bags in his right hand, advised that he is able to walk 1.5 km in 20-30 minutes, reported stairs are difficult and said he prefers to use ramps. Ms Trapp opined that the applicant could currently work 15-29 hours a week, and 30 hours plus a week within six months. Ms Trapp noted the applicant advised her that he believed he would be able to work 30 hours plus a week within six months, and reported he would only need assistance accessing a phone to find full time employment. She said Mr Williams advised that he had many years of experience in the field of mortgages and telemarketing.
13. Ms Trapp assessed Mr Williams as rating 10 impairment points under Impairment Table 3 for loss of function in the right upper limb (dominant) as there was a moderate loss of dexterity and strength. She noted there was mild interference with manual handling because of the scaphoid condition in the left wrist, and assessed Mr Williams as rating 0 impairment points for loss of function in the left upper limb. Because Mr Williams could walk 1.5 km on uneven ground in 20-30 minutes Ms Trapp assessed a rating of 0 impairment points from Table 4 for the right knee condition.
14. In her report Ms Trapp said that she contacted Dr House on 31 January 2006 who advised that the applicant was able to undertake full time employment in a light or sedentary capacity, such as mortgage broker or telemarketer. She noted Dr House reported Mr Williams would “do well”.
15. At the hearing Ms Trapp gave evidence by conference telephone. She confirmed that the contents of her report are true and correct. She said that she came to her conclusions in relation to Mr Williams' impairment ratings and work capacity on the basis of his self reporting of the things he could do, after having regard to the available medical reports. Ms Trapp said that she accepted the diagnoses provided by the doctors in the medical reports.
16. Ms Trapp said that she had probably been generous (towards the applicant) when she assessed him as being unable to work more than 29 hours a week for six months. Her reason that he could not immediately work 30 hours or more was that he had not worked for a very long time, and she thought he would need time to adjust to full time work. She said in retrospect she felt that Mr Williams probably could have returned to work of 30 hours or more a week within a month of her assessment.
17. Mr Williams put to Ms Trapp that her report contained considerable factual errors, and that she had perhaps misunderstood what he had said when she interviewed him. Ms Trapp responded by saying she uses a combination of open and closed questions, and takes lots of notes when she interviews clients, and she does not believe that she would have been mistaken.
18. Ms Trapp confirmed that she had contacted Mr Williams’ general practitioner Dr House.
Findings of Tribunal
Impairment ratings
19. Before an impairment rating can be assigned under the Impairment Tables a condition must be one that is fully documented, diagnosed and also be a condition which has been treated and stabilised. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
20. The condition must also be permanent. To be considered permanent, a condition must have been diagnosed, treated and stabilised, and will more likely than not, persist for the foreseeable future. This will be taken as lasting more than two years.
21. In order to assess whether a condition is fully diagnosed, treated and stabilised I must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
22. The Respondent contends that the applicant’s right and left wrist condition and his knee condition are permanent conditions. I accept this to be the case, however I note that the only evidence to this effect is a medical certificate from Dr House which includes very little information pertaining specifically to the applicant’s left wrist. The left wrist condition is not mentioned in the treating doctor’s report.
23. The relevant Impairment Tables (3 and 4) in Schedule 1B read as follows:
TABLE 3. UPPER LIMB FUNCTION
All upper limb problems are assessed under the upper limb Table (Table 3). Each arm is assessed separately. Determination of upper limb impairments must be based on a demonstrable loss of function.
Rating Criteria
NIL Can use dominant limb effectively and/or Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of upper limb which causes mild interference with hand function or manual handling.
FIVE Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes moderate interference with hand function or manual handling.
TEN Demonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes moderate interference with hand function or manual handling.
FIFTEEN Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of non-dominant upper limb which causes significant interference with hand function or manual handling.
TWENTY Demonstrable evidence of major loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which causes significant interference with hand function or manual handling or
Unable to use non-dominant upper limb at all.
THIRTY Unable to use dominant upper limb at all.
TABLE 4. FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TEN 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.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
THIRTY Pain or claudication restricts walking (4km/h) to 50m or less at a time. Can walk further after resting or restricted to walking in and around home and:
· requires quad stick, crutches or similar walking aid, or
· is unable to transfer without assistance.
FORTY Unable to walk or stand and mobile only in a motorised wheelchair or wheelchair with an attendant.
24. I make no findings on the total appropriate impairment ratings as I believe there is insufficient available material to do so for the following reasons.
25. Dr House indicated that the applicant has pain and loss of function in the right upper limb. Regretfully Dr House does not detail what functions Mr Williams has loss of. Ms Trapp concluded that Mr Williams had moderate loss of dexterity and strength. It would appear she came to this conclusion on the basis that the applicant self reported that he had difficulty holding a pen, that he could not sign his name in the same way twice, and that he could only lift light grocery bags. I do not consider that there is sufficient evidence to conclude that the applicant has a demonstrable loss of dexterity and strength of his dominant limb that causes moderate interference with hand function or manual handling.
26. As far as the left wrist is concerned, Ms Trapp concluded that the applicant had mild interference with manual handling. Ms Trapp noted the applicant uses his left hand for activities such as vacuuming, mopping and sweeping. Mr Williams denies being able to do any of these activities. Ms Trapp told the Tribunal at the hearing that she was likely mindful of the medical certificate of Dr House dated 4 June 2005 in which he provided a diagnosis of bilateral scaphoid fractures. In that same brief medical certificate, Dr House indicated the applicant has weakness in both wrists. Dr House does not specify the degree of weakness or the effect of that weakness on the applicant’s capacity to function, and he made no mention of a left scaphoid fracture in his initial treating doctor’s report.
27. In relation to Table 4, Dr House indicated that the applicant has an unstable knee on weight bearing and walking. Dr House did not comment on the distance he felt the applicant could walk. It is Ms Trapp’s evidence that Mr William’s reported being able to walk 1.5 km and so on that basis he cannot qualify for more than nil impairment points from Table 4. Mr Williams has disputed this and claims he did not say he could walk 1.5 km.
28. Mr Williams has referred to a report of Dr Dodd, however regretfully that does not appear in the information before me. I understand this report goes to the severity of Mr Williams’ conditions and therefore is relevant to the impairment rating that should be allocated. I also understand the x-rays Mr Williams would like taken into consideration address the same point. As I have made no finding on the impairment points Mr Williams should be allocated, the absence of Dr Dodd’s report and lack of perusal of x-rays does not impact upon my decision. I have found that Mr Williams does not have incapacity to work, for the reasons given below.
Ability to work
29. At the time of the claim, s 94(2) provided that for a person to be considered to have a continuing inability to work:
·The impairment is of itself sufficient to prevent the person from doing any work within the next 2 years, and
·either,
othe impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years, or
oif the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training – such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.
30. Work was defined at the time of claim, by section 94(5) of the Act as work of at least 30 hours per week, at or above award wages, that exists in Australia, even if not locally accessible by the person.
31. In a medical certificate dated 4 June 2005 Dr House indicated the applicant was unfit for work from 1 June 2005 to 1 September 2005, due to a combination of his knee and wrist conditions.
32. In a medical certificate completed on 8 August 2005 Dr House indicated the applicant was incapable of working from 8 August 2005 to 8 November 2005 due to his knee condition. Dr House indicated that impacting upon Mr Williams’ return to work was his inability to get a job as a real estate agent.
33. Ms Trapp, who I accept to be trained and qualified to assess a person’s ability to work found that the applicant would be able to work more than 30 hours within six months and likely to be able to do so within one month of her assessment. I accept Ms Trapp’s evidence that she spoke with Dr House who informed her that the applicant would do well and was capable of working in a job such as telemarketing.
34. I am mindful of the fact that the legislation requires me to address the applicant’s capacity to perform any work for at least 30 hours per week, at or above award wages, that exists in Australia, even if not locally accessible by the person. There is no evidence from either a medically qualified practitioner or a work capacity assessor which supports Mr Williams’ contention that he was unable to work for the two years following the date he lodged his application for disability support pension.
35. I accept that Mr Williams would be capable of performing work of a sedentary nature that does not require him to walk extended distances, and allows him to rely on the use of a head set. Telemarketing would be one such job.
36. I find that Mr Williams did not have a continuing inability to work during the relevant period.
Decision
37. Mr Williams did not have a continuing inability to work during the relevant period. He therefore does not satisfy the qualification criteria for disability support pension. I affirm the decision under review.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 4 June 2007
Date of Decision 12 July 2007
For the Applicant Mr Williams, himself
For the Respondent Mr B Avery, departmental advocate
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