Dos Santos and Department of Family and Community Services

[2001] AATA 360

DECISION AND REASONS FOR DECISION [2001] AATA 360

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T1998/100

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      MANUEL ANTONIO DOS SANTOS      
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Ms A F Cunningham (Part-time Member)          

Date2 May 2001

PlaceHobart

Decision      The decision under review is affirmed.   
  ..............................................
  Part-Time Member
CATCHWORDS
Social Security – disability support pension – international agreement – impairment rating – continuing inability to work – applicant not qualified.
Social Security Act 1991 – s.94(1)

REASONS FOR DECISION

2 May 2001 Ms A F Cunningham (Part-time Member)   

1. The applicant has sought the review of a decision made by an authorised review officer on 5 March 1998 which affirmed a decision of the Commonwealth Service Delivery Agency (Centrelink) delegate of the Secretary of the Department of social Security on 4 March 1997 to reject an application for a disability support pension.    The decision was subsequently affirmed by the Social Security Appeals Tribunal (SSAT) on 11 June 1998.

2. The reason for the delay in the determination of the appeal by the Tribunal was due to the fact that the applicant was advised to lodge a fresh claim for  disability support pension because of the continuing deterioration of his back condition.   His second claim for disability support pension was however rejected and the applicant has not lodged a request for the review of that decision.   Thus the decision under review by this Tribunal is that of the authorised review officer dated 5 March 1998.

3. As the applicant resides in Portugal and was unable to attend a Tribunal hearing in person, both parties consented to the appeal being determined on the basis of the written material before it. This includes the 'T' documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.   The Tribunal also had the benefit of two more recent medical reports being medical reports of Dr. J Carvalho Silva dated 11 February 1999,  Dr. Ulisses Goncalves dated 12 February 2000, Dr. K. Wnekowski dated 24 October 2000.

4. The applicant's claim for a disability support pension was made on the basis of his lower back pain condition, and was lodged pursuant to the provisions Australian/Portuguese Social Security International Agreement.   Whilst the Agreement provides for the portability of Australian pensions, a claimant must nevertheless qualify for the pension claimed under the relevant provisions of the Social Security legislation.

5. Section 94 of the Social Security Act 1991 ("the Act") sets out the qualifying provisions for a disability support pension:

   "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; 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 Australia 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."

6. Medical evidence on the file satisfies the Tribunal  that the applicant is suffering a physical impairment of lower back pain and thus satisfies the provisions of sub-paragraph 1 (a).

7. The impairment Tables appearing at Schedule 1B of the Act have been amended subsequent to the decision under review. On 13 February 1997, Dr. Tanya Winzenberg assessed the applicant's impairment rating at 10% under Table 6 of the impairment Tables. The applicable Table for spinal function is now Table 5 and in particular Table 5.2 thoraco-lumbar sacral spine.

8. Dr. Winzenberg  reported that the applicant had pain on bending, was unable to lift heavy objects, could not put on his shoe, could only walk up to one kilometre and that pain was pronounced during sitting.  She reported that the pain responded well to medication and that whilst it limited the applicant's ability for heavy lifting and bending, she noted that there was no evidence to suggest that he was unable to perform light duties.   In the report Dr. Winzenberg commented  that the applicant was able to perform the light/semi-skilled work of a clerk or service provider such as parking attendant, taxi driver, courier and that of a light/lesser worker, such as a theatre attendant, railway station assistant, bar useful, gate attendant, security officer or caretaker.

9. The applicant initially experienced back pain following a back injury sustained in a motor vehicle collision which occurred in June 1983.    The applicant was first examined by Dr. Gomes on 13 June 1983.   Dr. Gomes noted in his report, dated 17 January 1984 that the applicant had severe pain in his back and whilst he was  apprehensive about surgery, in Dr. Gomes' view, even if the applicant underwent surgery he would never be able to return to his "hard job as a concreter".   Dr. Gomes commented in his report, that the applicant was suffering from pre-existing degenerative arthritis of the lumbar spine and mild lower lumbar disc lesion which was precipitated by the motor vehicle accident.

10. The Tribunal has noted the applicant's responses in his disability support questionnaire in relation to restrictions on his day to day activities and his contention that he is not able to do any type of work.    In the applicant's letter of appeal received by the Tribunal on 21 August 1998, the applicant claims that he is disabled and not able to work.    However the applicant's contention that he is unable to work must be assessed in accordance with the provisions of the relevant legislation and the other evidence presented to the Tribunal, in particular the medical evidence.

11. The physiotherapy report prepared by Dr. J. Carvalho Silva received by the Tribunal on 12 April 1999 states that the applicant has an actual incapacity of 29%.   The content of the report indicates however that the incapacity rating was prepared using a different Table than that prescribed under the social security legislation.   There is no reference by Dr. Silva to the then applicable Table 6 (other musculoskeletal impairment) which lists impairment ratings of nil, five, ten, fifteen, twenty, thirty, forty and fifty.

12. The report dated 11 February 1999 prepared by Dr. Jose Drago, Neuro- Radiologist, in relation to  the findings of a spine cat report, does make any reference to an impairment rating.   There is nothing in the report to assist the Tribunal to prescribe a rating in accordance with Table 6 or the now applicable Table 5.2.

13. Whilst Dr. Ulisses Goncalves states in his report dated 12 February 2000 that the applicant's pain prevents him from bending the spine  and from working, there is no reference to his incapacity rating under Table 6 or Tables 5.2.   For a rating of 10 under Table 6, being the rating prescribed by Dr. Winzenberg on 13 February 1997, the applicant must suffer chronic pain in any joint or combination of joints.    It is noted that the SSAT in its decision commented that the 10% rating seemed generous on the basis of the then available evidence.

14. The only medical report of recent origin which refers to an impairment rating is that of Dr. K. Wnekowski dated 24 October 2000 in which he confirms the previous impairment rating given of 10 points under the impairment Tables.   He describes the applicant's condition as that of "degenerative lumbar spine" and reports that the applicant suffers a loss of quarter range of movement.   The current criteria under Table 5.2 for a rating of 10 are that the applicant suffer a loss of one-quarter of normal range of movement as well as back pain or referred pain with many particular activities;  with standing for about 30-minutes; and with sitting or driving for about 60-minutes; or suffer a loss of half of normal range of movement.   For an impairment rating of 20,  the applicant must suffer a loss of half of normal range of movement as well as back pain or referred pain.    The Tribunal accepts the opinion of Dr. Wnekowski for there is no evidence that the applicant suffers any more than a loss of quarter range of movement. 

15. Dr. Wnekowski reports that the applicant is not unfit for all work and that he is able to engage in light/lesser skilled work as a theatre usher, hotel concierge, checkout operator and the like.   Dr. Wnekowski further reported that whilst the applicant is currently unfit for his former job, he would be fit for 30 hours of light work which avoiding repeated bending, twisting and lifting.   He noted that whilst the applicant has degenerative changes at L4/5 in his lumbar spine, he has near normal range of movement.

16. On the basis of the evidence the Tribunal finds that the applicant fails to satisfy the requirement under sub-section (b) that he has a continuing inability to work. To be eligible for a disability support pension, a claimant must satisfy each of the provisions of sub-section (1) of s.94 of the Act. As the applicant has failed to qualify under two provisions, he is accordingly not qualified for a disability support pension.

17. The Tribunal  affirms the decision under review and dismisses the appeal.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing  Matter decided on the papers.
Date of Decision  2 May 2001