Yonis and Secretary, Department of Family and Community Services

[2003] AATA 912

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 912

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/539

GENERAL ADMINISTRATIVE   DIVISION		)
Re		ABDI YONIS

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO

Date17 September 2003 

PlaceSydney

Decision The decision under review is affirmed. 

...............................................

Rear Admiral AR Horton AO,

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – review of SSAT decision that applicant not qualified for disability support pension – permanent impairments of fractured right distal radius and left hip pain – assessment of impairment ratings – whether applicant has continuing inability to work – decision affirmed

LEGISLATION

Social Security Act 1991 – section 94, Schedule 1B

Social Security (Administration) Act 1999 – Schedule 2, Part 2

REASONS FOR DECISION

17 September 2003  Rear Admiral A R Horton AO, Member  

1.        Mr Abdi Yonis (“the Applicant”) sought review of a decision of the Social Security Appeals Tribunal ("the SSAT") on 19 March 2003 which affirmed a decision of an authorised review officer (“ARO”) on 13 January 2003, that he is not eligible for the disability support pension (“DSP”).  That decision by the ARO had in turn affirmed the original decision by an authorised delegate of the Secretary, Department of Family and Community Services (“the Respondent”) on 30 October 2002 that the Applicant was not so eligible.

2.        The Applicant lodged an application for review by the Administrative Appeals Tribunal (“the Tribunal”) on 1 April 2003.  At a hearing before the Tribunal on 2 September 2003, the Applicant was self represented and gave oral evidence.  Ms J Green, an advocate for Centrelink, appeared for the Respondent.

3. The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). The Tribunal also took into evidence:

Exhibit	Description	Date
A1	Letter from Dr G Kirsh, Orthopaedic Surgeon	25 November 2002
A2	Letter to the Applicant from the Human Rights and Equal Opportunity Commission	21 November 2002
A3	Letter to the Applicant from the Anti Discrimination Board of New South Wales	29 October 2002
A4	Treating Doctor’s Report from Dr M Ansari, General Practitioner	15 March 2003

ISSUES

4. The decision of the SSAT was to the effect that the Applicant has permanent impairments of the right wrist and left hip pain, and hence meets the criteria in subsection 94(1)(a) of the Social Security Act 1991 (“the Act”), which requires that he have a physical, intellectual or psychiatric work related impairment (as defined in the Introduction to the Impairment Tables in Schedule 1B of the Act). The SSAT found that the Applicant did not meet the criteria of 20 or more impairment points pursuant to subsection 94(1)(b) of the Act and, that being the case, did not proceed to consider whether the Applicant had a continuing inability to work pursuant to subsection 94(1)(c) of the Act.

5. At the outset of the hearing, the Respondent conceded that the Applicant met subsection 94(1)(a) of the Act in respect of having physical impairments, within the time frame for consideration of his claim under the legislation, of the right wrist and left hip pain. The issues before the Tribunal were therefore whether those impairments had a combined rating of 20 points or more under subsection 94(1)(b) and, if so, whether the Applicant had a continuing inability to work pursuant to the criteria in section 94.

LEGISLATION

6. Section 94 of the Social Security Act 1991 (“the Act) defines the qualification criteria for the disability support pension, and states, relevantly:

"94      Qualification for disability support pension

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.

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 within the next 2 years; and

(b)       either:

(i)the 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

(ii)if 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.

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 educational or vocational training or on-the-job training; or

(b)if subsection (4) does not apply to the person - the availability to the person of work in the person's locally accessible labour market.

94(4)For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5)In this section:

...

"work" means work:

(a)       that is for at least 30 hours per week at award wages or above; and

(b)       that exists in Australia …

7. Schedule 2, Part 2 of the Social Security (Administration) Act 1999 relevantly states:

"4   Start day - early claim

(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 was 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 was 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."

8. Impairment is assessed against the work-related Impairment Tables at Schedule 1B of the Act.. The introduction to the Tables states, relevantly:

"2. These tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. ...

3. These tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. ...

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. ...

5. The condition must be considered to be permanent. ...

6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one 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 2 years.

In this context, reasonable treatment is taken to be:

·     treatment that is feasible and accessible ie, available locally at a reasonable cost;

...

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment ... In those cases where significant functional improvement is not expected ..., it may be reasonable to consider the condition stabilised.

...

8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. ..."

BACKGROUND AND EVIDENCE

9.        The Applicant migrated to Australia from Ethiopia in 1995, having been schooled to year 12 equivalent level.  He initially worked as an interpreter in Tasmania, before commencing a mechanical engineering degree at the University of Tasmania.  He completed his degree in 1999.  He was subsequently unable to obtain employment as an engineer, and hence returned to study for a Masters degree in process (chemical) engineering at the University of New South Wales (“UNSW”).  In May 2001, when he was part way through his degree, he suffered a fractured right wrist whilst playing sport.

10.      Dr M Ansari, General Practitioner, initially placed the wrist in plaster, but in July 2001, when there was no evidence that the injury was healing, referred the Applicant to Bankstown Hospital.  He was operated on the following day, a plate being inserted, and skin grafted (from the left hip).  During this period, the Applicant did not attend his University course, being given an extended time to complete his semester studies.  The Applicant described his condition following the operation as not improving, and that he was in “pain most of the time”, requiring medication of Panadeine Forte every second day.  He was referred to Dr M Brennan at Bankstown Diagnostic Imaging by Dr G Kirsh, Orthopaedic Surgeon, for post-operative assessment (T6 page 45) in August 2001.  He informed the Tribunal that he subsequently saw Dr Kirsh “lots of times”, and attended physiotherapy, but his arm did not get any better.   

11.      The Applicant was also referred to the Commonwealth Rehabilitation Service (“CRS”) during this period, where he sought to improve his computing skills, given that his dominant hand, the right, was effected by the wrist fracture.  The documentation available to the Tribunal is incomplete as regards CRS involvement at this time, but it appears to have been quite limited due to the assessed unfitness for work of the Applicant.  The Applicant endeavoured to resume his studies at UNSW but found he could not write as necessary to take notes, nor could he sit exams for the same reason. 

12.      In April 2002, the Applicant was re-admitted to hospital for the removal of the plate.  His evidence to the Tribunal was that no improvement resulted and, in spite of later physiotherapy at Canterbury Hospital, the wrist remains painful and he continues to take periodic medication.  During this period, he was excluded from further studies at UNSW because of his non-attendance, resulting from which he lodged a complaint against the University with the Anti Discrimination Board of New South Wales (Exhibit A3), a complaint that apparently remains outstanding.  A later complaint to the Human Rights and Equal Opportunity Commission was deemed outside the terms of the relevant Act (Exhibit A2).

13.      The Treating Doctor’s Report (“TDR”) by Dr Ansari (T4) accompanying the claim for DSP dated 1 October 2002 (T5), described the right wrist fracture as long term, that is likely to persist for at least two years, and deteriorating.  A report of an examination by Dr D Pereira of Health Services Australia (T16) for the Respondent, notes the fracture to the right wrist (distal radius), and that the Applicant has “persisting pain … for which he is taking analgesic medication”.   Dr Pereira notes that the Applicant has “difficulty with prolonged, strenuous manual tasks like using a computer mouse for over 1 hour, opening jars.  On examination, he had reduced range of right wrist movements.  His fine finger movements were normal.  Grip strength was mildly reduced.”   Dr Pereira also notes intermittent left hip pain resulting from the removal of skin for the bone graft.  He notes no abnormalities.  Dr Pereira assessed the combined impairment rating (under Table 3 for Upper Limb Function and Table 4 for Lower Limb Function) as ten points and, with some restrictions, assesses the Applicant as fit for full-time study/employment and training. 

14.      In a more recent TDR dated 15 May 2003 (Exhibit A4), Dr Ansari describes current symptoms in relation to the right wrist as “numbness and pain, restricted movements”, with an inability to “write and lift”, the condition expected to persist for more than two years.  The Applicant gave evidence that his wrist condition effected most of his activities, that he was not confident that he could drive, and that he was often in pain.  He reads often, but is limited in his ability to write, being right handed.  He can use a computer, but he rarely types.  He can dress himself without help, but has restrictions in the household environment; he cannot hold a knife properly.  He emphasised the inconsistency in his view that whilst Dr Pereira assessed his grip strength as “mildly reduced”, Ms Sarah Baxter, Occupational Therapist at Canterbury Hospital opined on 15 November 2002 (T21 page 76) that it was 20 lbs.  The Applicant believed the normal grip strength was in the order of 65 lbs. 

15.      The Applicant submitted that the opinions of Ms Baxter and the CRS had been given insufficient weight in the consideration of his claim for DSP.  He further believed that he was not fit to undertake any work, and this was supported by medical reports.  He cannot do exercises, and cannot use the right hand.  He often feels pain and numbness of the right hand in the morning and at night.  He stated that his hand swells at times, for no accountable reason, but maybe because he is unconsciously trying to use his hand.  As regards the left hip problem, the Applicant stated that he can walk comfortably for some 15 to 20 minutes, but then feels pain.  A number of times each day he walks some eight to nine minutes to the Lakemba Mosque.  The Applicant considered he would not be able to work as an interpreter because of the need to write.  In summary, and observing that medical opinion was that there was nothing that could be done, he felt demoralised, and was giving thought to moving interstate or returning to Ethiopia and his family. 

16.      By way of final submission, the Respondent accepted that some deterioration in the condition of the Applicant’s right wrist could occur over time, but the relevant period under consideration was for 13 weeks from the date of lodgment of the claim, that is, 2 October 2002, and the evidence was such that a total impairment rating of ten points, as assessed by Dr Pereira, was appropriate.  The Respondent also referred the Tribunal to the view of Dr Kirsh (Exhibit A1) that the wrist problem should settle in time.

CONSIDERATION AND DECISION

17. The Tribunal agrees with the concession by the Respondent that the Applicant has permanent impairments of right distal radial fracture and left hip pain, and hence meets the criteria under subsection 94(1)(a) of the Act. The question of whether the impairments are of 20 points of more pursuant to subsection 94(1)(b) is before the Tribunal.

18. Table 3 of the Impairment Tables at Schedule 1B of the Act is relevant to the impairment of right distal radial fracture. It relevantly states:

“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… non-dominant upper limb …

TENDemonstrable evidence of loss of strength, mobility, coordination, dexterity and/or sensation of dominant upper limb which cause moderate interference with hand function or manual handling. 

FIFTEEN… non-dominant upper limb …

TWENTYDemonstrable 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 …”

19.      On balance, and on the evidence before it, the Tribunal considers that an impairment rating of ten points is appropriate.  The assessments by Dr Ansari and Dr Pereira best meet the “moderate” criteria, and the evidence of the Applicant does not indicate a major loss or limitation.  In respect of the matter of grip strength as earlier discussed, the Tribunal also notes that the Applicant’s own treating orthopaedic surgeon, Dr Kirsh, records (Exhibit A1) that his grip “is fine” and, again, such an assessment does not accord with a major loss or interference.

20. Table 4 of the Impairment Tables at Schedule 1B of the Act is relevant to the function of the lower limbs, and the instructions for its use note that impairments must be based on a demonstrable loss of function. Table 20 can be used for miscellaneous conditions including chronic fatigue and pain. Double-counting by the use of more than one Table is precluded. In this instance, the Applicant refers to a loss of function and hence Table 4 is considered appropriate.

21.      Table 4 relevantly states:

“Rating  Criteria

NILWalks without difficulty on a variety of different terrains and at various speeds for distances of more than 500 metres

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

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

…”

22.      The evidence of the Applicant is that he can walk comfortably for 15 to 20 minutes and then feels pain.  He did not indicate or imply that he could walk no further.  There are no medical reports noting this pain, other than that of Dr Pereira, who recorded that the Applicant complained of intermittent left hip pain, and diagnosed the condition accordingly.  Dr Pereira records that the Applicant stated that he has difficulty with prolonged standing/walking but, on examination, found gait and transfers normal, a full range of lower limb movements and normal strength.  The Applicant’s treating doctor, Dr Ansari, makes no mention of hip pain or any restrictions on mobility.  The Applicant made no specific reference to taking analgesic medication for hip pain, but the Tribunal accepts that benefit would be obtained from medication taken in respect of wrist pain.  On the evidence before it, the Tribunal finds that a Nil impairment rating for this condition is appropriate. 

23. The combined impairment rating of ten points is insufficient to meet the 20 points or more criteria in subsection 94(1)(b) of the Act, and hence the Applicant does not qualify for the disability support pension.

24. Having not met the conditions under subsection 94(1)(b) of the Act, it is not necessary for the Tribunal to address subsection 94(1)(c) in respect of whether the Applicant has a continuing inability to work, as defined in subsection 94(2). However, the Tribunal is left with the impression that the Applicant, with considerable linguistic skills and a demonstrated ability to achieve in a highly technical environment, is showing a lack of determination to overcome an injury which would seemingly not preclude him from successfully pursuing a variety of educational/work options.

25.      The decision under review, that is that the Applicant does not qualify for the disability support pension, is affirmed.                    

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member

Signed:         C. Gregson
  Associate

Date/s of Hearing  2 September 2003
Date of Decision  17 September 2003
Solicitor for the Applicant          Self-Represented
Advocate for the Respondent   Ms J Green