Baker and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1354

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1354

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 200600322

GENERAL ADMINISTRATIVE DIVISION		)
Re		WARREN GEORGE BAKER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date23 May 2007

Place Brisbane

Decision  The decision under review is affirmed

.................[Sgd].............................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – impairment rating – insufficient impairment rating from impairment table – depression condition not treated and stabilised

Social Security Act 1991 s 94

WRITTEN REASONS FOR DECISION

23 May 2007	Senior Member B J McCabe
introduction

1.      Mr Warren Baker suffers from a number of health conditions and says he cannot work. Prior to 21 September 2005, he was in receipt of the Disability Support Pension (DSP) but it was cancelled on that date following a reassessment. The Tribunal must now decide whether the applicant was qualified to receive DSP in the 13-week period following the cancellation decision.

2.      The key issue in this case is whether the applicant’s conditions are such that they attract at least 20 points on the impairments tables published by the Secretary.

3.      I am satisfied the respondent was right to cancel Mr Baker’s DSP when he did. I explain my reasons below.

4.      Mr Baker said he was unable to appear in person at the hearing, which was held in Lismore. He said his psychiatric condition in particular made it hard for him to leave the house. He appeared by telephone.

Mr Baker’s health conditions and the impairment ratings

5.      Mr Baker suffers from a lower back condition. He says it causes him constant pain. He claims he takes painkillers regularly. His oral evidence about the extent of his disability was confusing. He first asserted he could not lift any loads; when pressed, he declined to estimate the maximum load he could lift. In cross-examination, he accepted the description of his capacity contained in the decision of the Social Security Appeals Tribunal (the SSAT). I accept his ability to sit and stand for long periods has been diminished and he has lost around a quarter of his range of movement.

6.      The SSAT concluded the applicant’s conditions attracted an impairment rating of 10 points under Table 5.2. After hearing the applicant and reviewing the reports of the treating doctors and Mr Thomson, the rehabilitation consultant, I am satisfied that was the correct rating.

7.      The applicant also suffers from a right shoulder condition. (The left shoulder has been symptomatic in the past, but it was not a problem at the relevant time.) Once again, his oral testimony was confusing when asked to explain how his condition impacted on his functioning. He accepted the SSAT summary when asked although I note he said he could not lift his right arm above his head.

8.      Table 3 deals with upper limb functioning. The table addresses the impact on hand function and manual handling. Although the evidence offered by the applicant, his doctor and the rehabilitation consultant suggests the applicant’s range of arm movement is restricted by the shoulder condition, there appears to be limited impact on hand function and manual handling. It follows the SSAT was right to award nil points under this table.

9.      Mr Baker also has cysts on both of his testes. He says the cysts do not prevent him working although they are an obstacle to a sexual relationship. This condition falls to be assessed under Table 20. Given the absence of any impact on work functions, I am satisfied the applicant attracts a nil rating under this table.

10.     The applicant also says he suffers from depression. He has been diagnosed as suffering from dysthymia. He says he has suffered with the condition for many years. He says attempts at treatment have been unsuccessful. He says he is currently trying medication but Mr Stanke (a psychologist who saw the applicant on behalf of Centrelink) says the applicant was not using any medication or receiving any treatment for the condition at the end of 2005. Mr Stanke said the symptoms were mild at that time in any event.

11.     Mr Baker makes it clear that the symptoms of depression are and have been very serious, and that they are probably the biggest obstacle to him working. I accept that is so for the purposes of this exercise but it is clear that the condition was not permanent at the relevant time in that it was not fully treated and stabilised. Reasonable treatment options were available to the applicant at the time, but he was not trying any of them. I am therefore unable to assign an impairment rating in respect of the depression/anxiety condition at the time.

12.     The applicant also referred to an alcohol abuse condition. His general practitioner mentioned it as well. I am unable to assign an impairment rating in respect of that condition because there was no evidence before me to suggest it was a permanent condition that had been treated and stabilised.

Conclusion

13. I have reached the same conclusion as the SSAT in relation to the applicant’s rating under the relevant impairment tables. Section 94 of the Social Security Act 1991 says the applicant is not eligible to receive DSP unless he has at least 20 points under the impairment tables. At the relevant time, Mr Baker only had 10 points. The decision under review must therefore be affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .............................................................................
  Associate      Stephen O’Grady

Date of Hearing  3 May 2007
Date of Decision  23 May 2007
The applicant represented himself by telephone at the hearing.

The respondent was represented by Mr Black, a departmental advocate.