Attard and Secretary, Department of Family and Community Services
[2005] AATA 162
•23 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 162
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/315
GENERAL ADMINISTRATIVE DIVISION
Re: ANTHONY JOHN ATTARD
Applicant
And: SECRETARY,
DEPARTMENT OF FAMILY AND
COMMUNITY SERVICES
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 23 February 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
SOCIAL SECURITY - disability support pension - lower back pain – cancellation - whether 20 impairment points - continuing inability to work
Social Security Act 1991 ss 94(1), 94(2), 94(3), 94(4), 94(5), Schedule 1B
Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444
REASONS FOR DECISION
23 February 2005 G.D. Friedman, Member
1. This is an application by Anthony John Attard (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 11 February 2004. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 4 December 2003 to cancel the applicant’s disability support pension (DSP).
2. At the hearing on 15 December 2004 and 9 February 2005 Ms D. Rasheva of counsel, instructed by Victoria Legal Aid, represented the applicant and Ms K. Paul, a Centrelink advocate, represented the Secretary to the Department of Family and Community Services (the respondent).
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T31), two exhibits (Exhibit A1 and A2) lodged by the applicant and one exhibit (Exhibit R1) lodged by the respondent.
BACKGROUND
4. The applicant was born on 9 July 1949 and migrated to Australia in 1964. He has been receiving disability support pension (DSP) since 3 November 1999 due to L5/S1 disc degeneration and related pain. He was medically assessed on 15 October 2003. On 24 November 2003 Centrelink cancelled his DSP because he did not have an impairment rating of at least 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).
5. On 4 December 2003 an authorised review officer affirmed the decision. On 8 December 2003 the applicant sought review of the Centrelink decision by the SSAT. Following the SSAT decision to affirm the decision, the applicant lodged an application with the Tribunal on 9 March 2004 for review of the SSAT decision.
6. The issues before the Tribunal are whether the applicant’s medical condition attracts an impairment rating of at least 20 points under the Impairment Tables and whether he has a continuing inability to work.
EVIDENCE
7. The applicant gave oral evidence that he left school at the age of 14 in Malta and when he arrived in Australia he found employment as a storeman/clerk at Kinnear Ropes, where he remained for 19 years. He said that he then worked as a hand forklift operator for 3 years before joining a cosmetics company as a forklift driver. He worked there for 14 years before his employment was terminated in 1999. He stated that during this period he developed back pain, which became worse, and was diagnosed as a bulging disc. He believed that the medication for his back pain was causing drowsiness and was affecting his work performance.
8. The applicant told the Tribunal that he found casual employment unloading containers, but was only able to manage two days per week. After two years he was unable to continue to work because of back pain, and was granted DSP. He said that after his DSP was cancelled he has been receiving newstart allowance, but has not looked for work because of the constant pain in his back and the difficulty in performing basic household tasks, such as gardening. He stated that he would prefer to work, but this is impossible because of the pain and his limited mobility.
9. Under cross-examination, the applicant said that he is able to walk for short distances, and drives his motor vehicle occasionally. He said that sometimes he becomes dizzy after taking his medication. He said that he has not worked as a dispatch clerk for many years, and that any job that required sitting for extended periods would not be feasible.
10. Mrs R. Attard, the applicant’s wife, gave oral evidence that the applicant is no longer able to help with household tasks. She said that he is forgetful, depressed and feels hopeless because of his pain and his inability to do anything meaningful with his life. Mrs Attard stated that the applicant’s back pain and the effects of his medication have prevented them from socialising and enjoying visits to their children and grandchildren.
11. In a report dated 15 September 2004 (Exhibit A1), Mr C. Haw, hand and orthopaedic surgeon, stated that the applicant’s main complaint was low back pain. He said that the applicant was working 50 hours per fortnight and could drive a fork lift and handle small objects. Mr Haw concluded that the applicant has early arthritis in the left ankle, a degenerate lumbar spine (disc degeneration at L5/S1) and a capability for employment of 15 hours per fortnight. In a supplementary report dated 4 October 2004 (Exhibit A2) Mr Haw said that the applicant has a permanent impairment which is likely to persist for more than 2 years, and has an impairment rating of 20 points. Mr Haw noted:
…
The patient is unable to work more than 15 hours per fortnight because of the severity of the pain which ensues if he works for longer hours. It is possible that with retraining that he could work for longer hours providing he was not involved in work that required him to stand or sit for periods in excess of one hour and did not involve stooping or heavy lifting.
12. In oral evidence Mr Haw stated that he has had 24 years’ experience as a surgeon. He stated that the applicant’s medication, which includes opiates and codeine, would affect his ability to drive a motor vehicle or a forklift because of restricted concentration and inability to sit for extended periods. Mr Haw told the Tribunal that labouring work would not be possible, but with re-training the applicant might be able to work in positions such as a car park attendant or security officer as long as his physical limitations were taken into account.
13. Under cross-examination, Mr Haw acknowledged that he had seen the applicant on two occasions, and that part of his assessment in relation to the applicant’s ability to sit and stand was based on the applicant’s answers to questions asked of him during the consultations. Mr Haw also agreed that the nature of back problems is such that assessments such as spinal movements are inexact and may vary from day to day.
14. Mr D. Bellingham, disability officer with Centrelink, Moreland, gave oral evidence that he makes a number of referrals each week to rehabilitation providers for assessment and re-training. He stated that even Centrelink customers with the loss of half the range of movement in their back might be successful in undertaking re-training. He told the Tribunal that there are positions such as car parking attendant, light assembly work and ticket inspector available to people with back pain who are limited in their ability to walk, sit, stand and lift heavy objects. Under cross‑examination, Mr Bellingham agreed that persons over 55 years of age who do not have a high level of education and who have been manual workers face greater difficulties in finding suitable work, but that with motivation, a person such as the applicant can be rehabilitated and employed.
15. In a report dated 15 October 2003 (T23), Dr J. Hilal, Health Services Australia, assessed the applicant’s low back pain as a permanent condition with an impairment rating of 10 points under Table 5.2 (Thoraco-lumbar-sacral spine) of the Impairment Tables. He stated:
…
In my opinion Mr Attard is fit for light full time work that does not involve lifting or carrying of heavy objects. Suitable tasks include sale work, car park attendant or office/desk work.
Dr Hilal stated that the applicant’s hypertension has only a minimal impact on his capacity to work, and this condition attracts a rating of nil points.
16. In oral evidence Dr Hilal said that the applicant would not be able to resume his former occupation of forklift driver because of his back pain. Under cross‑examination, Dr Hilal stated that as the applicant is fit for light employment he would also be able to undertake re-training, although some jobs do not require a significant amount of re-training.
CONSIDERATION OF THE ISSUES
17. Section 94 of the Act provides:
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;
…
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) …
"work" means work:
(a)that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
Schedule 1B of the Act, in so far as it is relevant, provides:
. . .
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. …
18. Ms Rasheva submitted that the Tribunal should prefer the evidence of Mr Haw, an experienced surgeon, to the evidence of Dr Hilal, a general practitioner. The Tribunal should therefore find that the applicant has an impairment rating of at least 20 points and a continuing inability to work because he would not be able to work for more than 15 hours per fortnight. She referred the Tribunal to Secretary, Department of Social Security v Pusnjak (1999) 56 ALD 444 and noted that the applicant is now aged 55 years and has little likelihood of being re-trained, taking into account his lack of education and his history of manual work.
19. Ms Paul submitted that at the date of the cancellation of DSP the applicant did not have an impairment of 20 points or more under the Impairment Tables and did not have a continuing inability to work. She said that Mr Haw and Dr Hilal agreed that the applicant would be able to perform duties that take into account his limited movements. Ms Paul noted that Dr Hilal has been trained in the application of the Impairment Tables and is well qualified to make an accurate assessment. She also stated that the applicant has performed the duties of dispatch clerk and is not limited to jobs of a physical nature.
20. In reaching its decision, the Tribunal takes into account the oral and written evidence and submissions made at the hearing.
21. On the question of whether the applicant has a continuing inability to work, the Tribunal notes that Dr Hilal believes that the applicant would be fit for light full-time employment that does not involve lifting or carrying heavy objects, while Mr Haw’s opinion is that the applicant is unable to work for more than 15 hours per fortnight. The Tribunal notes the assessment by Mr Haw that after re-training the applicant could work longer hours, taking into account restrictions concerning standing, sitting, stooping and lifting.
22. In Pusnjak (at 452‑453), Drummond J stated in relation to continuing inability to work:
…
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)(b)(i) Is the impairment of itself sufficient to prevent the particular pension claimant undertaking, ie, commencing, during the next 2 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. If not, the Secretary must proceed to consider s 94(2)(b)(ii) and ask:
As to s94(2)(b)(ii) If there is available training of a kind capable of fitting the claimant within a 2‑year period for work which he cannot now perform for want of the necessary skills or experience, but which he could perform with that retraining, is it likely, taking into account only the impediment his impairment may place on his ability to complete that training within that period, that he will acquire the skills or experience necessary to fit him for the new class of work within 2 years?
…
36. In my opinion, the applicant has failed to demonstrate any error of law on the part of the tribunal in taking into account Mr Pusnjak's actual work skills and experience and capacity to be retrained for any work that he could thereafter do when it determined that Mr Pusnjak had "a continuing inability to work because of an impairment" within the meaning of that expression in s 94(2)….
23. The Tribunal takes into account the requirements of ss 94(3), (4) and (5) of the Act and notes that in relation to s 94(4), Drummond J stated (at 453):
38 Section 94(4) permits, but does not oblige the secretary to take into account the likely availability of work for a particular claimant in his locally accessible labour market provided he is at least 55 years old at the time a decision has to be made. But s 94(4) does not make the age of a claimant, be it greater or less than 55 years, irrelevant in determining whether the person has a continuing inability to work. Section 94(4) directs the decision-maker to the availability of work in the whole Australian labour market and prevents him from having regard to the availability of work for the pension claimant in his locally accessible labour market unless the claimant is 55 or older. But subject only to that restriction, a claimant's age, whatever it be, is a consideration which the decision-maker can, I think, properly take into account in determining whether the particular claimant meets the various requirements of s 94(2) and thus has a continuing inability to work, ie, whether a class or classes of work which the decision-maker has identified as in fact available somewhere in Australia is work which the particular claimant has the existing capacity to perform and (if appropriate) whether the claimant can or cannot be retrained as envisaged by s 94(2)(b).
24. Although the applicant has worked primarily in a manual occupation for a number of years, the Tribunal notes that he was employed as a dispatch clerk before concentrating on forklift operating and driving. The Tribunal accepts the evidence from Mr Bellingham that referral to rehabilitation providers for re-training is possible for persons such as the applicant who have limitations because of severe lower back pain, and that employment in other positions might be feasible. The Tribunal accepts Mr Haw’s evidence that the applicant would be able to attend for appropriate educational or vocational training designed to retrain him and assist him to return to the workforce. For these reasons, the Tribunal finds that the impairment suffered by the applicant is not of itself sufficient to prevent him from undertaking educational or vocational or on-the-job training during the next two years (s 94(2)(b)(i) of the Act), or that such training is unlikely (because of the impairment) to enable him to do any work within the next two years (s 94(2)(b)(ii) of the Act).
25. Consequently, the Tribunal finds that the applicant has not demonstrated a continuing inability to work and does not satisfy s 94(2) of the Act. Therefore, he is unable to satisfy s 94(1)(c)(i), and s 94(1)(c)(ii) does not apply. It follows that he cannot satisfy s 94(1). Consequently, at the relevant time the applicant did not qualify for DSP and the cancellation decision was correct. In the circumstances, the Tribunal does not need to consider the other issue before it, namely, whether the applicant’s medical condition attracts an impairment rating of at least 20 points under the Impairment Tables.
DECISION
26. The Tribunal affirms the decision under review.
I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 15 December 2004
9 February 2005
Date of decision: 23 February 2005
Counsel for applicant: Ms D. Rasheva
Solicitor for applicant: Victoria Legal Aid
Advocate for respondent: Ms K. Paul, Centrelink
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