Cole and Secretary, Department of Family and Community Services

[2004] AATA 857

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 857

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/504

GENERAL ADMINISTRATIVE  DIVISION

Re:ADRIAN DAVID COLE

Applicant

And:SECRETARY               DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             17 August 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G. D. Friedman

Member

SOCIAL SECURITY - disability support pension - lower back pain - whether 20 impairment points - continuing inability to work

Social Security Act 1991 s 94(1), s 94(2), s 94(3), s 95(5), Schedule 1B

REASONS FOR DECISION

17 August 2004  G.D. Friedman, Member

1. This is an application by Adrian David Cole (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 23 March 2004. The SSAT affirmed a decision of an authorised review officer of Centrelink dated 7 January 2004 to refuse an application for disability support pension (DSP) because the applicant 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).   

2.      At the hearing, conducted by telephone, on 11 August 2004 the applicant represented himself and Ms K. Paul, a Centrelink advocate, represented the Secretary, 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‑T41), together with one exhibit (Exhibit A1) lodged by the applicant.

BACKGROUND

4.        The applicant was born on 9 September 1972.  He had been receiving newstart allowance from 2 September 1991.  After some short periods of employment between 1991 and 1994, he has been in receipt of newstart allowance continuously since 1 November 1994.  On 31 October 2003 he lodged a claim for DSP because of chronic lower back injury.  After a medical review Centrelink refused the claim for DSP on 20 November 2003 because his impairment rating was assessed at less than 20 points under the impairment tables.  On 7 January 2004 an authorised review officer affirmed the decision.    

5.        On 20 January 2004 the applicant sought review of the Centrelink decision by the SSAT.  Following the SSAT decision, the applicant lodged an application with the Tribunal on 21 April 2004 for review of the SSAT decision.

6.        The issue before the Tribunal is whether the applicant has an impairment rating of at least 20 points under the Impairment Tables and whether the applicant has a continuing inability to work.

EVIDENCE

7.        The applicant gave oral evidence that he left school in Year 8 and had obtained casual employment as a kitchen hand and a labourer before injuring his lower back in 1995 and has not been able to work since then.  He said that the back pain has spread to his hips, and he has difficulty in sitting and walking.  He explained that sometimes he is able to help with household tasks and play with his young daughter, while at other times he suffers constant pain.

8.        The applicant told the Tribunal that he takes Panadeine Forte tablets to ease the pain and undertakes exercises recommended by his general practitioner.  He stated that several years ago he consulted a specialist, who told him that his injury was minor and did not require surgery.  He emphasised that he applied for DSP because he had been out of the workforce for more than 9 years and had poor literacy and numeracy skills.  He said that apart from occasional work delivering leaflets, he has applied unsuccessfully for a number of jobs since his injury, and believed he was capable of process work or security work that did not involve sitting or standing for extended periods.

9.        In a report dated 30 October 2003 (T29) Dr D. Christian, the applicant’s treating doctor, described the applicant’s condition as spondylosis pars defect L-1 and asymptomatic disc bulge L3-4, and stated that the applicant is unable to do any repeated bending, heavy lifting (>5 kg), pushing and pulling, unable to sit or stand for long periods.  The report stated further that the condition is likely to persist for more than 24 months, and its effect on the applicant’s ability to function is likely to fluctuate and deteriorate.

10.      In a report dated 19 November 2003 (T30), Dr P. Loewy, of Health Services Australia, assessed the applicant’s chronic low back pain as rating 15 points under Table 20 (miscellaneous conditions) of the Impairment Tables.  Dr Loewy said that the applicant may have the capacity to do light work that allowed the applicant to stand or sit at will, and did not require repeated bending or placing undue strain on his back,.

11.      In a further report dated 9 June 2003 (Exhibit A1) Dr Christian stated that the applicant has a permanent and stable physical impairment of the spine assessed at 10 points under Table 5.2 (thoracic lumbar sacral spine).  Dr Christian said that the impairment precludes the applicant from performing any work which includes repeated heavy lifting, repeated bending, prolonged sitting or standing.  He noted that the impairment does not prevent the applicant from undertaking educational, vocational or on the job training providing these restrictions are met.

CONSIDERATION OF THE ISSUES

12.      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.(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 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.

13. Ms Paul submitted that at the date of the claim for DSP, or within three months of that date, the applicant did not have an impairment of 20 points or more under the Impairment Tables. Therefore, he did not satisfy s 94(1)(b) of the Act. She also submitted that the applicant did not have a continuing inability to work (s 94(1)(c) of the Act).

14.      In reaching its decision the Tribunal takes into account the oral and written evidence and submissions made at the hearing. 

15.      The Tribunal accepts the medical evidence and the oral evidence from the applicant that, as a result of lower back pain, his movements and activities are restricted and he would able to undertake full-time work only in a position that does not involve repeated heavy lifting, repeated bending, prolonged sitting or standing .  

16.      In relation to an assessment under the Impairment Tables, the Tribunal accepts the evidence from Dr Christian and Dr Loewy that the applicant has a permanent back condition that has stabilised.  The Tribunal prefers the assessment by Dr Christian under table 5.2, which appears to be appropriate for the applicant’s back condition.  The Tribunal finds that the appropriate impairment rating for the applicant is 10 points.      

17. Consequently, at the relevant date, that is the date of the claim for DSP or within three months of that date, the applicant did not have an impairment rating of 20 points or more under the Impairment Tables. As a result, the applicant does not satisfy s 94(1)(b) of the Act, and cannot satisfy s 94(1). Therefore, the Tribunal does not need to deal with the issue of whether the applicant had a continuing inability to work under s 94(1)(c) of the Act The decision to refuse the claim for DSP was correct.

DECISION

18.      The Tribunal affirms the decision under review.

I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       C. L. Lake

Clerk

Date of hearing:  11 August 2004

Date of decision:  17 August 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Ms K. Paul, Centrelink