DEREK FALLAIZE and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 228

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 228

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3077

GENERAL ADMINISTRATIVE DIVISION		)
Re		DEREK FALLAIZE

Applicant

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

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date6 April 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability support pension – Physical impairment – Impairment rating less than 20 points – Qualification criteria not satisfied – Decision under review affirmed

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

Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606

REASONS FOR DECISION

6 April 2009 Mr S Karas, AO, Senior Member

1. Derek Fallaize, the applicant, lodged a claim for disability support pension on 29 February 2008, which was rejected by Centrelink on 14 April 2008 as he had insufficient impairment points under the Tables for the Assessment of Work-Related Impairment for Disabililty Support Pension (“the Impairment Tables”)[1].  An authorised review officer affirmed that decision, as did the Social Security Appeals Tribunal (“the SSAT”) on 19 June 2008. The applicant applied for review to the Administrative Appeals Tribunal (“the Tribunal”) on 9 July 2008.

[1] Social Security Act 1991 Schedule 1B, Impairment Tables.

2.      The question for the Tribunal is whether the applicant qualifies for disability support pension on the date of his claim or within 13 weeks of that date.

Issues and legislation

3.      The issues for the Tribunal to determine are:

·whether the applicant satisfies s 94(1)(b) of the Social Security Act 1991 (“the Act”), which requires an impairment rating of 20 points or more under the Impairment Tables; and, if so,

·whether he has a “continuing inability to work” as required by s 94(1)(c)(i) the Act.

4.      There a number of “mandatory requirements” that must be considered and satisfied before any impairment rating can be assigned to a condition[2].  These are set out in paragraphs 4 to 6 of the Introduction to the Impairment Tables which, in so far as relevant, read:

[2] See Secretary, Department of Employment and Workplace Relations v Parry [2007] FCA 1606.

“Introduction

…

4. A rating is only to be assigned after a comprehensive history and examination…

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 …  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... ”

Background

5.      The applicant, who was self-represented, relied on his statements in his email to the Tribunal dated 5 February 2009.  He referred to the Job Capacity Assessment Report and the decision of the SSAT as being “biased”.  He feels that his back pain and other impairments have been understated in the previous decisions and not correctly assessed.  He relies on the report dated 19 March 2008 of Dr Abdul Khondaker, his treating doctor at the time of his application for the disability support pension, as correctly reflecting his position.

6.      Mr Robert Hamilton, for the respondent, referred to the legislative requirements for the disability support pension and the relevant period involved.  He emphasized that the Impairment Tables require medical assessments by a qualified person. 

7. Mr Hamilton conceded that the applicant’s impairments for the purposes of s 94(1)(a) of the Act are as follows:

·Low back pain with ¼ loss of range of movement, together with pain associated with physical activities including sitting, standing and driving for more than 30 minutes;

·Asthma, gastro-oesophageal reflux disease, hypertension and coronary heart disease; and

·Multi joint pain and hearing loss.

8.      Mr Hamilton referred to the applicant’s email of 5 February 2009 as showing that apart from 10 points for the back ailment (as determined by the SSAT), no points were available under the Impairment Tables to the applicant for his other ailments.

9. Mr Hamilton emphasised that work capacity under s 94 of the Act is related to any work that could be done, and is not limited to jobs that are available in the applicant’s locally accessible labour market.

Applicant’s evidence

10. At the hearing, the applicant gave evidence by telephone that he gave up work voluntarily in January 2008 as he was in pain. He told the Tribunal that he suffers from a number of impairments, some of which were conceded by the respondent for the purposes of s 94(1)(a) of the Act (see above).

11.     He has had opportunities to obtain further medical evidence (other than that produced) but none have been forthcoming from him. He states he is waiting to see a specialist for his back pain and that he is not on a “pain management program”.

12.     The applicant noted his health was “terrible” and that he has “good and bad days”.  He suffers from a shortness of breath.  He unsuccessfully attempted to give up smoking and now tries to keep smoking “to a minimum”. The boat he lives on is 46 feet long and 15 feet wide.  It has steps and 3 sections.  He can move around the boat but on a bad day he “can’t get out of bed”.  He can look after himself at home when his partner works.  He reiterated that he could not control his pain and stated he is on medication and takes pain killers.

13.     According to the applicant, he cannot work on a regular basis as he cannot predict his good or bad days, although he agreed he had a capacity to work.   He confirmed he told the SSAT of this, and that he had only been able to complete four hours in an eight hour day at the time he stopped work in January 2008. 

14.     The applicant could work from home by doing computer work but could not guarantee that such work would be regular.  He trained in electronics in the United Kingdom and could build a computer if he had the parts as he could move around while doing so.  Reference was made to the SSAT decision and he agreed with his statement contained therein that he could do “light clerical work” or work as a “console operator at a service station”[3].

[3] T docs, folio 5.

Consideration

15. There is no substance to Mr Falaize’s claim that the SSAT decision was “biased”. Mr Falaize confirmed aspects of the evidence he gave at the SSAT and its decision is otherwise in accordance with the medical evidence and assessment procedures under the Act.

16.     The Tribunal accepts the applicant suffers lower back pain that affects his range of movements and suffers pain associated with physical activities including sitting, standing and driving for more than 30 minutes.  The loss of range of movement from the lower back pain has been identified as a “¼ loss of range of movement” from the evidence.  This impairment has been fully diagnosed, treated and stabilised and can therefore be rated according to the Impairment Tables.  It is, in the necessary sense, permanent.  I find that the evidence supports a rating of 10 points for this condition under Table 5.2 of the Impairment Tables.

17.     The applicant suffers from asthma, gastro-oesophageal reflux disease, hypertension and coronary heart disease. These impairments have been fully diagnosed, treated and stabilised and can thus also be rated according to the Impairment Tables.  However, each of these impairments have been assessed as having limited functional impact on the applicant, and are managed to an appropriate extent.  Accordingly, they attract a  NIL rating under the Impairment Tales.

18.     The applicant suffers multi joint pain and hearing loss.  These impairments have not been fully treated or stabilised.  Consequently, and taking into account the Introduction to the Tables as earlier referred to, no rating can be given to them under the Impairment Tables at this time.

19. As the applicant has been allocated a total of 10 points of impairment, he fails to satisfy s 94(1)(b). Therefore, his claim for disability support pension was correctly rejected.

20. In view of this finding, it is not strictly necessary to deal with a “continuing inability to work” as required by s 94(1)(c)(i). However, for completeness, I note that the findings of the Job Capacity Assessment Report, and indeed the admissions of the applicant himself, support the applicant having a capacity to work. This fact is not altered by the applicant’s references to a limited capacity to work and the unpredictability of his “good or bad days”. Indeed, the applicant stated that when he last checked, his former position was still being held open for him - although he added that he was not sure this would still be the case given the present economic conditions.

Decision

21.The Tribunal affirms the decision under review.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: ....................[Sgd].........................................................
             Mátyás Kochárdy, Research Associate

Date of Hearing  10 March 2009
Date of Decision  6 April 2009
Applicant was self-represented
Solicitor for the Respondent     Mr Robert Hamilton, Departmental Advocate