Esho and Secretary, Department of Family and Community Services

[2004] AATA 1118

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1118

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/751

GENERAL ADMINISTRATIVE  DIVISION

Re:NOAEL ESHO

Applicant

And:SECRETARY,

DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             27 October 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY ‑ disability support pension ‑ whether 20 impairment points ‑ whether condition diagnosed, treated and stabilised ‑ continuing inability to work

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

Social Security (Administration) Act 1999 cl 4(1) of Schedule 2

REASONS FOR DECISION

27 October 2004  Regina Perton, Member

1.      This is an application by Mr Noael Esho (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 7 October 2003.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 12 June 2003, 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 on 5 October 2004, the applicant represented himself.  Mr Wayne Zita, a Centrelink advocate, represented the respondent.  An interpreter in the Assyrian language facilitated communication, although the applicant gave much of his evidence in English.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T40) and a copy of a decision by the Compensation Court of New South Wales dated 13 October 2003 (Exhibit A1). 

BACKGROUND

4.      The applicant was born on 5 May 1967 and is 37 years old.   He injured his back and shoulder in a workplace accident during 2001.  He continued to work in that same workplace on lighter duties until December 2002.  The applicant lodged a workers’ compensation claim in late 2002 and obtained several medical and radiological reports to further his claim.  The compensation claim had yet to be determined when he lodged the application for DSP which is the subject of this review. 

5.      On 12 June 2003, the applicant lodged a claim for DSP, which was refused on the same day on the basis that the rating for the applicant’s impairment was less than the required 20 points under the Impairment Tables.  On 14 August 2003, an ARO affirmed the decision.  On 7 October 2003, the SSAT affirmed the decision to refuse the claim for DSP.  The applicant filed an application for review of the SSAT decision with this Tribunal on 28 October 2003.

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

EVIDENCE

7.      The applicant told the Tribunal that he has not worked since he was terminated by his previous employer in late 2002.  He said he has not tried to get another job or retrain as he is not capable of working or studying.   He stated that he, his wife, who is engaged in home duties and their children, aged 5 and 3, moved to Melbourne from Sydney about 6 or 7 months earlier. 

8.      The applicant said that he has been receiving weekly compensation since he was sacked by his employer in late 2002.  He tendered an award of the NSW Compensation Court dated 13 October 2003 (Exhibit A1), in which Geraghty J ordered:

1.That the respondent pay the applicant, on the basis of partial incapacity, weekly compensation at the rate of $293 from 25th September 2002, such weekly payment to continue in accordance with the provisions of the Act.

2.That the respondent pay the applicant, as lump sum compensation under section 66, $7,200 in respect of 12% permanent impairment of the applicant’s back (being in respect of 18% permanent impairment of the applicant’s back less a deductible proportion of one-third thereof pursuant to section 68A)….

9.      The applicant stated that he consulted a general surgeon, Dr Sanki, two or three times in relation to a low back injury and a left shoulder injury and that several x-rays and scans were taken.  The applicant said that he went to several physiotherapy and hydrotherapy sessions but has now stopped.  The applicant said that he was given instructions about exercises he should do at home but no longer does them due to the resultant pain.  He stated that his current general practitioner in Melbourne has prescribed painkillers.  He said that he has not obtained any further medical reports since the compensation case due to the cost.  He commented that the doctors and insurers had not assessed him appropriately. He said that the insurers should have given him compensation for his shoulder which is still painful.

10.     The applicant told the Tribunal that he undertakes his own personal grooming but he cannot sit comfortably for more than 30 minutes to an hour.  He said that he cannot stand for very long without experiencing discomfort.  He stated that he is able to move his shoulder but it is painful.  He stated that he suffers from stress.  The applicant said that his solicitor had referred him to a psychiatrist, whom he saw once, but the psychiatrist did not provide a written report.  He said that he has not explored any therapies to assist him to deal with the stress. 

11.     The applicant submitted that the pain in his back and shoulders coupled with his stress should have given him 20 points under the Impairment Tables.  He said that the insurance company and the court did not deal with his compensation case fairly, in particular by not awarding him compensation for his shoulder injury.  He said that he is still in dispute with the insurance company over outstanding medical accounts.

12.     Under cross-examination the applicant indicated that the physiotherapy  he undertook was only in relation to his back injury as the insurance company did not accept liability for his shoulder injury.  He stated that the physiotherapy was of no benefit.  He said that he undertook light duties for about one and a half years after the injury, but he did take some days and hours off during that period.  He stated that the work experience he had described in evidence during the SSAT hearing, namely as a petrol station operator, did not continue for very long and that he is not capable of doing such work.

13.     Towards the end of the hearing  the applicant said that his dispute was not with Centrelink but with the insurance company over its failure to pay compensation for his shoulder injury.   The Tribunal explained that it lacked jurisdiction to deal with the applicant’s  dispute with the insurance company or any other outstanding disputes he had with Centrelink on matters unrelated to DSP.

14.     The documents provided  by Centrelink include reports from radiologists, doctors and rehabilitation consultants.  Dr A Sanki of Fairfield Heights, NSW prepared a treating doctor’s report for Centrelink (T22) dated 11 June 2003.  Dr Sanki indicated that his client suffered from two conditions, a shoulder injury and a neck and back disc injury.  He stated that the applicant’s current treatment for the shoulder problem was physio and analgesic and that the condition could persist for more than 24 months.  Dr Sanki expected that the effect of the shoulder injury on the applicant’s ability to function would fluctuate.  In relation to the neck and back disc injury, Dr Sanki indicated that the current treatment was physiotherapy and analgesics, the condition would impact for more than 24 months and the applicant’s ability to function would deteriorate over that period.  

15.     In an earlier assessment dated 14 May 2003, Dr Sanki estimated that the applicant had 15% permanent impairment of his lower back as compared to the most extreme case.  He also advised that the applicant continues to undertake physiotherapy for his shoulder condition.  Dr Sanki also stated that the applicant was unfit for any work that involved lifting more than 5 kilograms.

16.     Samantha Fortrun, a rehabilitation consultant, prepared a Work Capacity/Participation Assessment Report for Centrelink dated 26 June 2003.  Ms Fortrun allocated the applicant 10 impairment points for his low back injury but nil points for his cervical spine injury or shoulder injury.  She suggested that with vocational counselling, English literacy training and a graduated return to work program, the applicant could undertake light less skilled work that did not involve heavy lifting.   Another rehabilitation consultant, Tatham Lennox, in a report dated 17 April 2003, was also of the view that the applicant was capable of light duties and further training.  He allocated 10 points under Impairment Table 5.2 for low back injury but nil points for the shoulder injury as it had not been sufficiently treated at that time. 

17.      Dr J Atto provided a medical certificate to Centrelink dated 24 March 2003 which indicated that the applicant was unfit for work for the following 3 months.  The doctor indicated that the applicant would be unable to work or undertake study for at least 8 hours per week for a further 6-12 months from the date of the report.

CONSIDERATION OF THE ISSUES

18.     Section 94 of the Act sets out how a person qualifies for DSP:

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

…

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)  In this section:

…

“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.

19. The Impairment Tables are set out in Schedule 1B of the Act. The Introduction to Schedule 1B states that:

…

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.  The first step is thus to establish a working diagnosis based on the best available evidence.  Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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.  This will be taken as lasting for more than two years.  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.

…

20. When deciding whether a person qualifies for the DSP, the decision maker also needs to take into account the provisions of clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999. Clause 4(1) allows a person who does not qualify for DSP at the date of application to do so within a further 13 weeks. In this case, the Tribunal must consider whether the applicant qualified for DSP either on 12 June 2003 or at a date before 11 September 2003 (the relevant period).

21. Mr Zita submitted that during the relevant period, the applicant did not have an impairment of 20 points or more under the Impairment Tables and therefore, he did not satisfy s 94(1)(b) of the Act. He submitted that the medical evidence supported the applicant having an impairment of 10 points for low back pain and nil points for his neck and left shoulder pain.

22.     Based on the documentary evidence and the oral evidence of the applicant, the Tribunal accepts that the applicant suffers from low back pain now, as he did at the time he applied for DSP.  It also accepts that his injuries and the attendant pain prevent him from undertaking the type of work he did prior to sustaining that injury.   The Tribunal also accepts that the applicant is unable to undertake full‑time work in a position that involves heavy lifting, prolonged sitting or standing and as a result will require further training and other assistance to be able to change the nature of his employment.   It also notes the applicant’s refusal to consider undertaking further training or seeking employment.

23.     In relation to assessing the applicant’s level of impairment under the Impairment Tables during the relevant period, the Tribunal is satisfied that the applicant’s spinal condition had been diagnosed, treated and stabilised and therefore permanent for the purpose of assigning an impairment rating. 

24.     Table 5.2 of the Impairment Tables is the relevant table for persons suffering from a spinal condition such as that of the applicant:

TABLE 5.2      THORACO—LUMBAR-SACRAL SPINE

As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.

Rating

Criteria

NIL

Normal or nearly normal range of movement.

FIVE

Loss of one-quarter of normal range of movement.

TEN

Loss of one-quarter of normal range of movement as well as back pain or referred pain:

·     with many physical activities and

·     with standing for about 30 minutes and

·     with sitting or driving for about 60 minutes.

  or

Loss of half of normal range of movement.

TWENTY

Loss of half of normal range of movement as well as back pain or referred pain:

·     with most physical activities and

·     with standing for about 15 minutes and

·     with sitting or driving for about 30 minutes.

  or

Loss of three-quarters of normal range of movement.

FORTY

Ankylosis in an unfavourable position, or unstable joint.

25.     Based on the applicant’s evidence and that of the medical practitioners, the Tribunal finds that, as at the date of application and during the relevant period, the applicant was entitled to 10 points under the Impairment Tables in relation to his spinal function. 

26.     However, the evidence in relation to the left shoulder is not as clear.   Dr Sanki, in his report dated 14 May 2003, indicated that x-rays of the shoulder showed it to be normal.  An ultrasound indicated some thickening of the tendon.  Dr Sanki advised the applicant to continue with physiotherapy of the shoulder. The applicant told the Tribunal that he had not continued with physiotherapy nor did he exercise that shoulder.   In his report dated 11 June 2003 Dr Sanki stated that the effect of the condition on the applicant’s ability to function was expected to fluctuate over the subsequent 24 months.  The Tribunal finds that although the applicant’s shoulder problem had been diagnosed at the time of application, it had not been treated and stabilised and therefore could not be considered permanent.  Therefore, no points can be allocated for that condition during the relevant period. 

27. Therefore, the Tribunal finds that, at the date of application and during the relevant period, 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). The decision to refuse the claim for DSP was correct.

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the twenty-eight (28) preceding paragraphs are a true copy of the reasons for the decision herein of

Regina Perton, Member

(sgd)       Catherine Thomas

Clerk

Date of Hearing:  5 October 2004

Date of Decision:  27 October 2004
Advocate for applicant:                Self‑represented
Advocate for respondent:            Mr Wayne Zita, Centrelink