Bell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2012] AATA 78

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION  [2012] AATA 78

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/3067

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRIAN BELL

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr A Frazer,  Member

Date13 February 2012

PlacePerth

Decision The Tribunal affirms the decision under review.

..........[sgd A Frazer]........

Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairments – applicant’s impairments not considered permanent –applicant not qualified for disability support pension – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94 and Sch 1B

REASONS FOR DECISION

13 February 2012 Dr A Frazer,  Member

Introduction

1.      Mr Brian Bell, (“the applicant”), who is 52 years of age, lodged a claim for the disability support pension (“DSP”) on 24 December 2010 in respect of lower back pain.

2.      On 9 March 2011 Centrelink rejected his claim and this decision was affirmed by a Centrelink Authorised Review Officer on 7 April 2011 on the basis the applicant’s impairments did not rate at least 20 points on the Impairment Tables.

3.      On 1 July 2011 the Social Security Appeals Tribunal (“SSAT”) affirmed the ARO’s decision.

4.      On 2 August 2011 the applicant made an application to this Tribunal for review of the SSAT’s decision.

The Relevant Legislation

5. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly 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;

…

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 independently of a program of support within the next 2 years; and

(b)       either:

(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

Note:    For work see subsection (5).

…

94(5) In this section:

training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:

(a)       education;

(b)       pre‑vocational training;

(c)       vocational training;

(d)       vocational rehabilitation;

(e)       work‑related training (including on‑the‑job training).

work means work:

(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

(b)that exists in Australia, even if not within the person’s locally accessible labour market.

…”

6. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act.

The Evidence

7.The evidence before the Tribunal comprised:

·the “T Documents” (T1-T13, pp 1-182) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”);

·Exhibit A1 – Pain Relief Chart, Neurological Intervention and Imaging Service of WA, documenting bilateral facet joint injections, dated 10 January 2012;

·Exhibit A2 – Hydrotherapy Exercises, provided to the applicant in January 2012;

·Exhibit A3 - Letter from Terry Ward, Work Australia, dated 9 January 2012;

The Applicant’s Evidence

8.      The applicant told the Tribunal he applied for the DSP for his long standing low back pain only.  The applicant said about 17 years ago he did his back in whilst he was working at Bunnings.  He said though that recently, for the first time, he has been undergoing other treatment for his back pain.  He has discussed it with his GP, Dr Joe Chamizo, who referred him to see a neurosurgeon at Shenton Park Hospital. The applicant said “he was getting the impression that he had no choice but to have treatment for his back.” 

9.      The applicant said he had bilateral facet joint injections in his lower back on 10 January 2012 and, so far, he has had an excellent result from this treatment.  He said this involved cortisone injections and that his back is now a lot better and the pain since is no where near still as bad.  The applicant said he does have an issue with needles but “so far so good.”

10.     The applicant said he is now trying to do more walking and aims to walk for around an hour every second night.   He now undertakes regular physiotherapy and also tries to do hydrotherapy around 4 times a week at the pool in Balga.  The applicant can walk to and from the pool.

11.     The applicant said he lives independently and rents a room in a house.  He does all his own cooking and all his own shopping.  He has diabetes and knows to steer clear of high sugar level foods.  The applicant said his diabetes is currently managed with medication, diet and exercise.

12.     The applicant said he is also taking medication for high blood pressure which is managed for the time being.

13.     The applicant said that about 5 years ago he developed a problem with his shoulder however this has improved.

14.     The applicant said for the last 2 and a half years he has been on Newstart Allowance.  He feels it is a real problem when he applies for jobs and discloses his low back problems.  He has worked off and on at St Barts Hostel.  He said he can do many tasks however it is hard on his back if the task is repetitive.  As an example, the applicant said he can move tyres around 10 to 15 feet but it is the repetitive work that is really difficult.  Leaning over is also a problem such as using a broom or doing dishes, in a commercial situation.  

The Relevant Medical Evidence

15.     Report by Dr Chamizo, 24 December 2010 confirms the applicant suffers from mild to moderate spinal stenosis with a L4/5 disc herniation. This causes difficulty with repetitive bending and walking up an incline.

16.     Report by Neurological Intervention and Imaging Service of WA, Dr Ker, referring clinician, (A1) stating the applicant underwent bilateral facet joint injections at L5/S1 on 10 January 2012.

The Impairment Tables

17. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction” in which it is relevantly stated:

“1.       These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …

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. …

…

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.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  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 2 years.

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;

·where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·evaluate and document the probable outcome of treatment and the main risks and or (sic) side effects of the treatment; and

·indicate why this treatment is reasonable; and

·note the reasons why the person has chosen not to have treatment.

…”      

Analysis

Impairments

18. It is common ground that, at all material times, the applicant has low back pain and mild to moderate spinal stenosis which is an impairment within the meaning of para (a) of s 94(1) of the Act.

19. The first matter for the Tribunal’s determination is whether the applicant, when he applied for the DSP on 24 December 2010, had a total impairment of at least 20 points under the Impairment Tables for the purposes of para (b) of s 94(1) of the Act.

20.     The Tribunal accepts the applicant’s evidence that he has recently, in January 2012, had further treatment to his back with cortisone injections.  The Tribunal accepts the applicant’s evidence that he has had an excellent result to date.  The Tribunal also notes the applicant is undertaking regular walking and hydrotherapy exercise many times a week to manage his back pain.  The Tribunal accepts the applicant will also be reviewed in the near future by a spinal surgeon.  Therefore, the Tribunal considers the back impairment is not adequately treated and stabilised at this time, such that it can be considered permanent.  This impairment does not therefore attract a rating under the Impairment Tables.

21.     The Tribunal accepts the applicant’s evidence that he is managing his diabetes and hypertension by medication, diet control and regular exercise with no impact on his current level of functioning.  The Tribunal also accepts that the applicant has a history of a shoulder condition however this has improved. The Tribunal notes these medical conditions however does not consider them permanent impairments. Therefore, these conditions do not attract a rating under the Impairment Tables.

22.The applicant therefore does not satisfy para (b) of s 94(1) of the Act.

23. As the applicant does not satisfy para (b) of the s 94(1) of the Act it is unnecessary to consider whether the applicant satisfies para (c) of s 94(1) of the Act.

Decision

24.For the above reasons the Tribunal affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member

Signed:   [sgd D Brodie]
  ...................................................................

Associate

Date of Hearing  23 January 2012
Date of Decision  13 February 2012
Representative of the Applicant         Self-represented

Representative for the Respondent          Mr P Maishman

Centrelink