Beugelsdyk and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 510
•22 July 2013
[2013] AATA 510
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0086
Re
Mr Andreas Beugelsdyk
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Dr Ion Alexander, Member
Date 22 July 2013 Place Sydney The decision under review is affirmed.
...............[sgd].........................................................
Dr Ion Alexander, Member
CATCHWORDS
SOCIAL SECURITY – pensions – disability support pension – back condition – whether the applicant’s impairment rating was 20 points or more under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 s 94
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Dr Ion Alexander
22 July 2013
On 28 June 2012 Mr Beugelsdyk notified Centrelink of his intention to claim for Disability Support Pension (DSP).
On 3 July 2012 he lodged an application for DSP in which he claimed that he suffered “back and knee injury”.
His claim was supported by a medical report dated 2 July 2012 in which Dr Fong, general practitioner, diagnosed “lumbar disc & severe facet [joint] deg[eneration] & spondylosis” as the only condition that had a significant impact on Mr Beugelsdyk’s ability to function.
Mr Beugelsdyk’s application was rejected by Centrelink and subsequently the Social Security Appeals (SSAT) and he now seeks review of that decision.
The respondent contends that Mr Crickmore did not satisfy the requirements of section 94(1) of the Social Security Act 1991 (the Act) during the 13 week assessment period between 28 June 2012 and 27 September 2012. In particular, he did not satisfy section 94(1)(b) in that his rating under the Impairment Tables was less than 20 points and section 94(1)(c), in that he did not have a continuing inability to work as defined in section 94(2) of the Act.
At the hearing Mr Beugelsdyk was unrepresented and gave oral evidence.
ISSUES
At the hearing the respondent agreed that Mr Beugelsdyk suffered from a spinal condition, namely, “multilevel lumbar disc bulges and spondylitic changes” and therefore satisfied section 94(1)(a) of the Act.
Also, the respondent conceded that the spinal condition was fully diagnosed, treated and stabilised and that an impairment rating of 10 points under Table 4 – Spinal Function was warranted.
I note that the SSAT decided that the correct impairment rating for Mr Beugelsdyk’s spinal condition was only 5 points.
Therefore, it was agreed that the relevant issues for consideration by the Tribunal are:
·whether Mr Beugelsdyk’s impairment rating under Table 4 was 20 points or more, and, if so,
·whether Mr Beugelsdyk had a continuing inability to work as defined in the Act.
Mr Beugelsdyk’s Evidence
At the hearing, Mr Beugelsdyk stated that he had worked as a maintenance carpenter at Parramatta Leagues Club for about five years until he was made redundant in June 2012.
Mr Beugelsdyk stated that immediately prior to his redundancy his last project was an internal fit-out of a first aid room and explained that he did all the work himself including fitting all the Gyprock.
Mr Beugelsdyk stated that during the last five years he had increasing difficulty with lower back pain and that two to three times a year he would have to take several days off work because of more severe pain. Nevertheless, for most of the time he was able to continue working full-time.
Mr Beugelsdyk said that his pain is variable in severity and that he occasionally needs pain medication when the pain gets more severe. He has attended a pain clinic and has been treated with injections with little improvement. He also treats himself with an “Asian oil” that he rubs into his back and sometimes wears a thermal belt.
Mr Beugelsdyk conceded that since he has stopped work his symptoms have not gotten any worse and, in fact, in general, his lower back symptoms have improved. He also conceded that since leaving work he has suffered only one severe episode similar to the occasions where he previously would have taken time off work.
In respect of his functional capacity, Mr Beugelsdyk agreed that he is able to perform most light domestic duties such as sweeping the floor, hanging up the washing and some cooking. He is able to remove items from overhead kitchen cupboards and bookshelves and can pick up light items from the floor by bending his knees.
He explained that he does all the family driving and drives his wife to work every day. On two days a week after dropping her off at work he walks for at least 20 minutes near the Nepean River. Every Wednesday he attends the local swimming pool and does some simple exercises in order to “condition his muscles and keep them flexible”.
In respect of shopping, Mr Beugelsdyk explained that he frequently walks to the local Aldi store, which is about three minutes from home, and has no difficulty in walking home and carrying one plastic bag containing his shopping in each hand. On driving to a shopping centre he is usually accompanied by his wife, and has no apparent difficulty in walking from the parking area, around the shops and back to the car. He is able to take items off the shelf and place them in the shopping trolley, but his wife usually unloads the items from the trolley into the car.
Mr Beugelsdyk claimed that he could sit for only about 20 minutes before he suffered lower back pain and needed to stand and walk around. He conceded, however, that he was able to cope with extended periods of sitting during three recent overseas trips in June 2012, November 2012 and May 2013.
Also, he agreed that on a recent three hour drive to Tea Gardens he was able to sit for up to one hour before needing a break.
Mr Beugelsdyk agreed that apart from difficulty with bending over while showering and needing to sit down when putting on his shoes and socks he is able to care for himself without assistance. He explained that when putting on his shoes and socks he usually sits on an Esky, about 18 inches high, and is able to sit down and stand up without assistance.
Other Evidence
Most of the medical evidence before the Tribunal is directed at diagnosis and is of little assistance in respect of the assessment of any functional impact caused by Mr Beugelsdyk’s spinal condition.
In a letter dated 14 March 2013 Dr Fong states that “[h]is condition deteriorates a great deal in the last 6 to 12 months to the point of constant pain with fluctuating symptoms and a lot of the easy and daily expected tasks (such as walking, getting up from sitting position, steps negotiation, bending over, carrying items and dressing and putting on socks) became increasingly difficult” and provides a list of activities that Mr Beugelsdyk can and cannot do.
Dr Fong’s statement is largely inconsistent with Mr Beugelsdyk’s own evidence and the list provides no additional useful information, therefore, I give it little weight.
CONSIDERATION
The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“2011 Determination”) contains the Impairment Tables and sets out the rules for applying these tables.
The relevant Table for present purposes is Table 4 – Spinal Function which lists the descriptors to be used in assigning points for functional impact because of a spinal condition.
Inter alia the table lists descriptors where there is mild (5 points), moderate (10 points) and severe (20 points) functional impact on activities involving spinal function.
Relevantly, there is severe functional impact with a rating of 20 points when the person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their trunk; or
(c) bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
In my view, the evidence before the Tribunal clearly points to a conclusion that during the assessment period Mr Beugelsdyk’s spinal condition did not have a severe functional impact on his activities involving spinal function and, furthermore, the condition currently does not appear to have a severe impact on his spinal function.
Just prior to his application for DSP Mr Beugelsdyk was able to work full-time with no apparent restriction except on occasions where his symptoms periodically increased.
In his evidence Mr Beugelsdyk agreed that he can perform overhead activities, did not describe any difficulty with bending forward to pick up light objects from a table and was able to sit for at least 20 minutes and often for longer periods.
It follows that, during the assessment period, Mr Beugelsdyk’s impairment rating was less than 20 points which means that he did not satisfy the requirements of section 94(1)(b) and did not qualify for DSP.
For present purposes it is not necessary for me to decide whether Mr Beugelsdyk’s correct impairment rating was 5 or 10 points or whether he had a continuing inability to work.
DECISION
For the reasons set out above the decision under review is affirmed.
I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Dr Ion Alexander, Member .........[sgd]...............................................................
Associate
Dated 22 July 2013
Date of hearing 12 July 2013 Applicant In person Advocate for the Respondent Ms P Lee, Department of Human Services
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