Bailey and the Secretary of the, Department of Family and Community Services
[2004] AATA 1259
•29 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1259
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/111
GENERAL ADMINISTRATIVE DIVISION ) Re DONALD BAILEY Applicant
And
THE SECRETARY OF THE , DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr P A Staer Date 29 November 2004
Place Perth
Decision The Tribunal affirms the decision under review.
.............(sgd P A Staer)......................
Member
CATCHWORDS
SOCIAL SECURITY - disability support pension – back and foot injury – psychological component – no adequate treatment for stabilisation.
REASONS FOR DECISION
29 November 2004
Dr P A Staer, Member
1. Mr Bailey, the applicant in this matter, seeks a review of a decision of the Social Security Appeals Tribunal dated the 13 February 2004 which affirmed a decision of Centrelink on the 5 August 2003 to reject an application for disability support pension.
HISTORY
2. In summary, the applicant was claiming that back and foot injuries were preventing him from working and he wanted the disability support pension for a year or two until he sorted himself out.
3. The Tribunal had before it documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. There were no further exhibits.
4. Mr Bailey gave evidence and presented his own case by telephone from Albany
5. Mr Bailey gave an extensive review of his life history with his story taking approximately an hour and a half even though he claimed that chemicals had affected his throat and his ability to speak.
6. He is a farmer’s son who commenced work on the farm at an early age and he claims that he loves physical work. Along the way he had a number of injuries.
7. At age 11 he was knocked off a load of hay and fell upon his neck and head and he states that he never quite got over the fall. He has had neck problems ever since associated with headaches. His grades at school suffered because of the tension and soreness in his neck and the pain continues to annoy him even now and gives him pain when he turns to the right.
8. At age 16 he strained his right ankle and knee and his right leg “goes” from time to time and the pain stops him from continuing with activity.
9. Also, at age 16 he spent 3 weeks laying a cement slab using a small cement mixer. He claims his back had not fully developed at this time and this continual work at which he persisted left him with a lot of back pain.
10. From time to time he has had chiropractic treatment which has helped his neck to some degree but more recently the chiropractor in whom he had confidence retired.
11. At age 21 he was in a car rollover when he was not wearing a seatbelt. He had ten minutes of unconsciousness in the car and this accident further upset his neck.
12. The farm was not able to support him full time and he had had ideas of doing an apprenticeship in carpentry but his school grades were not good enough. He likes working with wood.
13. At age 33 he was working for a truckie and part of his job was doing maintenance on a prime mover. One day he was fitting a heavy break drum and he put “everything into it” to lift this break drum abut something slipped and he hurt the middle of his back and he had a lot of pain for many weeks. He has had back pain ever since and has had problems with physical work.
14. At age 29 he had X-Rays taken by his chiropractor and he was told that he had “discs out”. The Tribunal notes that in the T documents at T51 and T52 there are X-Rays taken of his thoracic spine and of his right foot. These X-Rays were taken and reported by a Dr Michael Kerr of SKG Radiology. The comment on the results was for the thoracic spine – “essentially normal investigation in keeping with the patient’s age” and on the right foot “no significant focal pathology identified but as indicated there does appear to be some mild patchy osteopenia which may be of no clinical significance but could potentially represent some disuse osteoporosis for example”.
15. At age 24 he tried training for the hospitality area but found that this was out of character as he likes being out of doors and has poor people skills.
16. At age 31 he gave up farm work and went into the retail business and was involved in selling and to a lesser extent laying reticulation for Total Eden. He left the retail business at age 38 as he felt continually being on his feet on a cement floor was causing problems with his right hip. At the present time he has not worked for about 5 years.
17. He is also concerned about a chemical effect from many bottles of unlabelled chemicals which were in his father’s shed. There was a continual smell of chemicals and at times he was nauseated and even occasionally vomited on a hot day. After getting rid of the bottles he has never had the same feeling again but he felt that these chemicals left him with a problem with his throat and this affected talking and caused problems with his employment.
18. He claims because he is not working his back went out and that doing exercises put more strain on his lower back and that for the past three and a half months he has been unable to do anything. He claims that his lower back swells. He wants an MRI but this is beyond his financial capacity at the present time.
19. He has a house in Albany which he renovates when he feels well enough but it is still not finished. He lives in another house on a three and a half acre block on the edge of town for which he has to pay off his parents.
20. Two years ago he lifted a 16 kilo drum and hurt his right foot. He claims he tore tendons and that there has only been a little recovery. He has seen a chiropodist and a podiatrist and has had some help with insoles.
21. Because of the problems with his feet on his own initiative he took to a wheelchair for some time and currently is using crutches. A previous GP has told him he should be making more effort to walk.
22. Under cross-examination he stated that his day consisted of having breakfast and taking the kids to school about ten kilometres away. He comes back, will walk a little, feed the dogs and guinea pigs or maybe do a little bit around the house and then may see his parents at lunchtime. Some days he does nothing. He will pick up his children after school.
23. His wife works full-time and they own a house in town which he is repairing when he feels well enough and this house is in joint ownership and is worth approximately $160,000. There is a $80,000 mortgage on this house.
24. The family live on a block which is in the applicant’s name and for which he needs to pay off his parents. This property is worth approximately $230,000.
dr geoff augustson
25. Dr. Auguston, is the applicant’s current GP and the applicant asked the Tribunal to ring him to give evidence on the applicant’s behalf.
26. The Tribunal spoke to Dr Augustson but he declined to give evidence with the applicant being present and at the time of the phone call was in a busy morning surgery. The Tribunal had to accept Dr Augustson’s reluctance to give open evidence.
s37 documents
27. The Tribunal finds the following significant evidence in the s37 documents.
28. At T19 there is a work capacity/participation assessment report by Rebecca Woods, a rehabilitation consultant and she made the following comments
“It appeared that Mr Bailey was attempting to present extensive information which justified his application for a disability pension”
“Difficulty was experienced in attempting to discuss alternative options to Mr Bailey’s current situation. Mr Bailey may have an undiagnosed depression which is contributing to this.”
“Mr Bailey became upset in the interview and it was difficult to discuss his many issues and possible beneficial interventions. Throughout the interview Mr Bailey repeated his family was in financial difficulty.”
“When alternative and appropriate work was suggested to him he said he would not be willing to participate as he already knows what work he wants to do even though his identified option may not be the most appropriate.”
“Mr Bailey was not satisfied with the discussed recommendations of this report” and suggested that “without being provided with income support he would be unwilling to pursue the recommendations of this report”
“Mr Bailey is currently limited by plantar fasciitis with treatment (or without) this will resolve and Mr Bailey should be able to return to some work in under 12 months and to full time work between 12 to 24 months. Ms Rebecca Woods gave him an impairment rating of 10.”
29. The Tribunal noticed that this report was apparently given without examining the applicant and there has been no recommended impairment rating done by a medical practitioner.
advanced personal management
30. Mr Bailey requested a file review from Advanced Personal Management. There was an interview on the 10th October 2003 and a report made on the 20th October 2003. The report in part stated “interview undertaken at customer’s request. No new medical information supplied. X-rays indicated some curvature of thoracic spine but no report supplied and interviewer not qualified in reading X-Rays. Functional impact unaffected”.
31. Previous discussions with his doctor confirmed the plantar fasciitis is temporary and will resolve within 2 years and should enable return to work previously undertaken, e.g. sales assistant.
dr francois bruere
32. Dr Bruere is an orthopaedic surgeon who examined the applicant Mr Bailey at the request of his general practitioner, Dr Geoff Augustson (T48). His report says in part,
“First of all I find it very difficult to decide exactly what this patient’s orthopaedic complaint and problem is. He says he injured his back at 23 years of age and he has never improved since work (or any activity) increases his back ache. He cannot take anti-inflammatories because he has ulcer problems but Tramal does not upset his stomach in any way. He finds that Tramal does not help his pain but it helps him relax.
It is my assessment that this man suffers from dysfunctional pain syndrome. He requires no further orthopaedic treatment except the symptomatic management of his pains and he really should get going. Psychiatric assessment may be of value. I suspect that he will have problems for a long time in walking on his algodystrophic foot but there is no other cure for it besides perseverance and forced activity.
It is my opinion that he regards himself as being incapable of function in any form of employment as a result of certain orthopaedic problems mainly mechanical backache and algodystrophy of his right foot and general melancholia. I am not optimistic about his motivation towards rehabilitation”.
findings of fact
33. The Tribunal finds that Mr Bailey has minor back and foot problems which are not as severe as he believes in his own mind.
34. The Tribunal accepts that Mr Bailey, as recommended by Ms Woods, is capable of undertaking some occupations not requiring heavy work at the present time and that with time he should be able to get back to full activity.
35. The Tribunal finds that on the basis of Ms Woods report, Dr Bruere’s report and its own assessment made during Mr Bailey’s evidence that Mr Bailey has a psychological problem for which he needs treatment.
legislation
Social Security Act 1991 – Section 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…. “
“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. “
considerations
36. The Tribunal finds that Mr Bailey does have a physical, intellectual and psychiatric impairment and therefore meets subsection 94(1)(a) of the relevant legislation.
37. On Ms Woods assessment, his impairment is only 10 points under the impairment tables and therefore he fails at 94(1)(b).
38. Even if he made the 20 points at the current time he would fail under 94(2)(a) as his impairment of itself is insufficient to prevent him from doing any work within the next 2 years or of undertaking educational or vocational training.
decision
39. The Tribunal therefore affirms the decision under review.
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