Cradick and Secretary, Department of Family and Community Service S

[2003] AATA 1277

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1277

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/433

GENERAL ADMINISTRATIVE DIVISION		)
Re		TREVOR JAMES CRADICK

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date16 December 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

....................(Sgd).....................

R G Kenny
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements - disability support pension - physical, intellectual or psychiatric impairment –impairment rating less than 20 points - relevant time-frame for qualification – need to consider a continuing inability to work – decision affirmed

Social Security Act 1991, s 94 and Schedule 1B

Social Security (Administration) Act 1991, Schedule 2

REASONS FOR DECISION

16 December 2003 Mr R G Kenny, Member    

Background

1.      On 17 July 2002, Trevor Cradick (the applicant) lodged a claim with Centrelink for payment of disability support pension in respect of the effects upon him of disabilities which were diagnosed in an attached report from his treating doctor, Dr J McConochie, as “degenerative arthritis neck” and “low back pain” (T6). On 22 August 2002, a delegate of Centrelink rejected the applicant’s claim. That decision was affirmed by an authorised review officer on 9 December 2002 and, in turn, by the Social Security Appeals Tribunal on 16 April 2003. On 22 May 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Appearances

2.      The applicant attended the hearing but was not represented. Mr J Howard from the Service Recovery Team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).

3.      At the hearing, the following material was taken into evidence:

Exhibit 1 – documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents: T1 – T17);

Exhibit 2 – a medical report, dated 12 September 2003, by Dr J McConochie;

Exhibit 3 – a physiotherapy report, dated 5 December 2003;

Exhibit 4 – a further report, dated 5 December 2003, by Dr J McConochie;

Exhibit 5 – a letter, dated 5 December 2003, from D J Mengel; and

Exhibit 6 – a letter, dated 4 December 2003, from Regina Albion.

Issues and Legislation

4. The issue in this matter is whether or not the applicant is qualified to receive a disability support pension which is payable in accordance with the terms of section 94 of the Social Security Act 1991 (the Act) which relevantly reads:

“(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:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

(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 form 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.

(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.

(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do the work, have regard to the likely availability to the person of work in the person’s locally accessible labour market.

(5) In this section:

‘educational or vocational training’ does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

‘on-the-job training’ does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

‘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."

5.      In accordance with that provision, the Tribunal must determine:

§whether the applicant has a physical, intellectual or psychiatric impairment; and, if so

§whether he has an impairment rating of 20 points or more which is calculated under the Impairment Tables in Schedule 1B of the Act, as required by paragraph 94(1)(b) thereof; and, if so

§whether he has a continuing inability to work as required by subparagraph 94(1)(c)(i) of the Act.

6. To qualify for a disability support pension, all three of those requirements must be met by the applicant. Further, they must be met at the time of the initial claim or in the period of thirteen weeks starting immediately after the day on which his claim was lodged as provided for in clauses 3 and 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) which relevantly read:

“3(1) If:

(a) a person makes a claim for a social security payment; and

(b) the person is qualified for the payment on the day on which the claim is made;

the person's start day in relation to the payment is the day on which the claim is made.

4(1) If:

(a) a person (other than a detained person) makes a claim for a relevant social security payment; and

(b) the person is not, on the day on which the claim is made, qualified for the payment; and

(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d) the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

4(2) For the purposes of subclause (1), the following provisions have effect:

(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

(b) parenting payment is not a relevant social security payment in the case of a person who becomes qualified for the payment because of the birth of a child.”

Applicant’s Evidence

7.      The applicant, who was born on 28 January 1950, gave oral evidence to the Tribunal. He said that, in about 1995, he injured his back in a fall onto a wooden crate whilst he was manoeuvring window frames on the back of a truck. He said that he has experienced pain in the upper and lower components of his spine since then and that he has also had faecal and urinary incontinence since then. He said that he had also hurt his back in an earlier incident while lifting a man-hole cover in his work with Telecom in about 1989. He said that, after leaving Telecom, he had conducted a second–hand business which he had to cease in about 1999 because of back pain. He said that his main problem is the pain associated with his back problems and that this was greater than might be expected by any limitations on range of movements that he may have with his spine and which may have been observed by examining doctors. However, he described some problems with the movement of his neck which cause him difficulty in driving his vehicle.

8.      The applicant said that he has great difficulty in maintaining a static posture so that he is not able to stand or sit in one position for very long. He said that this would prevent him from undertaking any employment where he would be required to do this, for example, in any form of clerical position.

9.      The applicant said that he did not believe that he suffered from depression though he conceded that this had been noted in recent medical reports by Dr McConochie and that, for about 12 months, he had been taking anti-depressant medication prescribed by DrMcConochie. He said that he is currently filling in his time through selling some of the items he had kept from his business in order to meet the requirements of a property settlement that he had entered into with his former wife.

Medical Evidence

10.     In evidence before the Tribunal were reports from the applicant’s treating doctor, Dr McConochie. The report attached to the initial claim referred only to two conditions. These were “degenerative arthritis neck” and “low back pain”. In his report of 12 September 2003 (Exhibit 2), Dr McConochie referred to the following conditions and to relevant impairment ratings:

major depression with total lack of insight – 30 points
back/lumbar and cervical pain – 10 points
faecal soiling – 10 points

urinary incontinence – 10 points

11.     In his latest report (Exhibit 4), dated 5 December 2003, Dr McConochie confirmed the diagnosis of each of those conditions, described a personality disorder in the applicant, stated that these conditions had all been “fully investigated” and were “permanent”, and said that the applicant would “never work again”.

12.     The only other medical evidence before the Tribunal is that of Dr M Balestrieri from Health Services Australia. In a report, dated 29 July 2002 (T8), Dr Balestrieri described the limitations of movement in the applicant’s spine and summarised this as representing the loss of ¼ normal range in the cervical spin, with an allocation of 5 points under Table 5.1. For the lower back, he described full range of movement and a capacity to adopt a static posture for a reasonable period. He allocated zero points under Table 5.2. Dr Balestrieri indicated that he had seen x-rays and a CT scan of the applicant’s spine. In his report, Dr Balestrieri also indicated that the applicant would be able to undertake light duties such as that involved in sales work, store work, hospitality work, supervisory work, or teacher aide work.

Applicant’s Contentions

13.     The applicant was critical of the way in which some Centrelink staff had dealt with his application and submitted that the evidence showed that he had more than the required number of points to satisfy the disability support pension criteria and that he did not have the capacity to undertake any work.

Respondent’s Contentions

14. Mr Howard referred to the terms of section 94 of the Act and, while conceding that the applicant had a physical disability, he submitted that, in the relevant period starting on the date of claim and running for 13 weeks, the only conditions that were fully treated and stabilised were thoseassociated with his cervical and lumbar spine. He submitted that the appropriate impairment rating for these was 5 points as indicated by Dr Balestrieri. He submitted that no ratings could be allocated to depression, personality disorder, faecal soiling or urinary incontinence as these had not been fully treated and stabilised in the relevant 13 week period. He submitted that the rating was less than the 20 points required under paragraph 94(1)(b) of the Act. He also submitted that the medical evidence was to the effect that, in the relevant period, the applicant was capable of undertaking light work and that, therefore, he did not satisfy the terms of paragraph 94(1)(c) of the Act.

Discussion of Evidence and Findings on Material Facts

15.     It is not in dispute that the applicant suffers physical impairment as a result of problems associated with his cervical and lumbar spine. These were the only conditions listed by his treating doctor in the initial claim and they were described as being permanent and stable. No reference is made to depression, faecal soiling or urinary incontinence until his subsequent report of 12 September 2003. Personality disorder is not referred to until the report was prepared on 5 December 2003, the date of the Tribunal hearing. In that latest report, Dr McConochie described all of the applicant’s conditions as having been “fully investigated” and “permanent”.. There is no evidence that the applicant has been referred to specialists in relation to these conditions and, in that sense, Dr McConochie’s declaration is somewhat surprising. However, regardless of that, the difficulty posed by the reports of Dr McConochie is that they make the additional diagnoses some 14 months after the initial claim.

16. Section 94 of the Act requires the Tables in Schedule 1B of the Act to be used in calculating impairment ratings and that Schedule includes an introduction which sets out the methodology for applying the various tables. It provides that, for a rating to be assigned, the condition must be “a fully documented, diagnosed condition which has been investigated, treated and stabilised”. Also, it provides that the condition must be considered to be “permanent”.. Further, these characteristics must be attributable to the condition being assessed as at the time of the claim or within the 13 week time-frame provided in clause 4 of Schedule 2 of the Administration Act. That is not the case with any of the applicant’s conditions apart from the problems associated with his cervical and lumbar spine and I am satisfied that these are the only conditions which constitute “physical, intellectual or psychiatric impairment” as provided for in paragraph 94(1)(a) of the Act.

17.     I am satisfied that the appropriate Table in Schedule 1B of the Act for the applicant’s cervical spine condition is Table 5.1 and that for his lumbar spine condition is Table 5.2. The report of Dr Balestrieri was prepared within a fortnight of the initial claim and was based on a physical examination of the applicant. Reference was made to x-rays and a CT scan although the results of an MRI Scan, which was taken in November 2002, were not then available. The loss of ¼ range of movement as noted by Dr Balestrieri equates with a rating of 5 points under Table 5.1 and the full range of movement that he noted in the lumbar spine equates with a nil rating under Table 5.2. I am satisfied that these are the appropriate impairment ratings in the relevant tables in Schedule 1B. This leads to an overall rating of 5 points which is less than the threshold of 20 points required by paragraph 94(1)(b) of the Act. I note that the allocation by Dr McConochie to these conditions in his report of 12 September 2003 (Exhibit 2) was also less than 20 points.

18. For the applicant to qualify for the disability support pension, all of the requirements of section 94 of the Act must be satisfied. The level of the applicant’s impairment is less than the threshold of 20 points required by paragraph 94(1)(b) of the Act. It follows that an essential component of the provision is not met and that, therefore, the applicant was not qualified for disability support pension at the time of his claim or at any time in the thirteen week period thereafter. As the applicant does not meet the requirements of paragraph 94(1)(b) of the Act, this makes it unnecessary to consider his capacity for work under paragraph 94(1)(c) of the Act.

Decision

19.     The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  5 December 2003
Date of Decision  16 December 2003
The Applicant appeared in person
For the Respondent                  Mr Howard, Departmental Advocate