Fabian and Secretary, Department of Family and Community Services

[2005] AATA 51

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 51

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/463

GENERAL ADMINISTRATIVE  DIVISION		)
Re		DENNIS FABIAN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President Don Muller

Date19 January 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision to reject an application for disability support pension, pursuant to the provisions of the Social Security Act 1991.

................SIGNED..............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – disability support pension – impairment rating less than 20 – no continuing inability to work  - decision to reject claim affirmed

Social Security Act 1991: s 94

Social Security (Administration) Act 1999: ss11, 37(1), 41: Schedule 2 Clauses 3 and 4

REASONS FOR DECISION

Deputy President Don Muller        

1.      On 3 October 2003, Dennis Fabian, the Applicant, applied for a disability support pension, on the basis that he has a debilitating back injury.

2.      His claim was rejected by Centrelink on 17 November 2003.

3.      On 26 May 2004, the Social Security Appeals Tribunal affirmed the Centrelink decision to reject the application.

4.      Mr. Fabian seeks a review of the decision to reject his claim.

5.      Mr. Fabian represented himself and gave evidence to the Tribunal by telephone.  His evidence was to the following effect:

(a)He was born in New Zealand on 27 April 1948.

(b)He left school at the age of 16, after he had completed two years in secondary school.

(c)He first entered Australia in the early 1970s when he was in his early 20s.

(d)He remained working in Australia for about 15 years.  His employment in Australia included taxi driving, shearing shed work, working with horses and cattle driving.

(e)He returned to New Zealand in 1996, where he lived for four years.

(f)Whilst in New Zealand he embarked on a land sub-division venture and a forestry enterprise.  The ventures were not financially successful and he lost all of his savings.

(g)He returned to Australia in 2000.

(h)He began an educational course to allow him to qualify for a horse-trainer’s license.  The course was conducted at Beaudesert.

(i)He finished the course in late 2001.

(j)In December 2001, he slipped and fell whilst shopping at Coles, Beaudesert.  He hurt his back in the fall.

(k)He thought that his back would “come good” but it has not.  He had medical advice to the effect that he may have aggravated pre-existing arthritis.

(l)In 2002, he went to live at Caloundra to try to obtain employment at the local race-course.  However, his back was too sore.  His back aches, he has numbness in his right leg and he cannot sit or stand for lengthy periods.  He tried to work at the stables but his back “gave way” and he could not do the work.

(m)He made a claim on Coles.  Coles paid for an MRI Lumbar Spine scan, which was conducted on 30 May 2003.

(n)Coles offered him $10,000 to settle his claim but he has rejected the amount as being too low.

(o)In recent times he has been living in Far North Queensland, at Mt. Garnet.  He initially took on a position as a property caretaker but he was asked to do jobs that he could not manage due to his back problem.

(p)He currently lives in a caravan at the Mt. Garnet caravan park.  He has no stamina and can only walk for about ten minutes.  His former types of employment are now “out of the question”.  He has recently done some work which involves turning sprinklers on and off.  

6.      The MRI Scan report by Dr. John Sykes on 30 May 2003, contains the following:

“Findings Lower thoracic spine and cord and conus were normal.  No significant abnormality is seen in lower thoracic discs.

At L1/2 and L2/3 disc levels there was no significant abnormality.  A haemangioma was noted in L3 vertebral body, unlikely of clinical significance.

At L3/4 there was a slight generalised annulus bulge, a little more prominent on the right lateral aspect where a tiny annular tear was seen.  There was minimal central canal stenosis. Mild narrowing was noted right foramen.

At L4/5 there was a mild generalised annulus bulge with a small tear in the right posterior annulus.  Pedicles were short and there was inward prominence of facet joints.  Mild to moderate central canal stenosis was noted.  There was mild to moderate narrowing of right foramen with mild narrowing of left foramen.

At L5/S1 there was mild broad based posterior disc bulging with an associated annular tear.  No significant canal stenosis or foraminal narrowing was visible.”

7.      Mr. Fabian was examined by Dr. Ho, orthopaedic surgeon on 12 May 2003.  Dr. Ho provided a report dated 13 September 2003, which contained the following:

“CLINICAL EXAMINATION

Clinical examination of the lumbar spine showed pain with hyperextension of the spine.  He could forward flex quite well.  Straight leg raising test did not show significant limitation.  There was no motor or sensory deficit on neurological examination.  Reflexes were within normal limits.

Examination of the right knee showed no effusion.  The cruciate and collateral ligament tensions were within normal limits.  The patellofemoral joint was not irritable.  He had full range of motion.  McMurray’s manoeuvre did not cause any localised pain.  X-ray of the knee was unremarkable.

RADIOLOGICAL EXAMINATION OF THE LUMBAR SPINE

CT scan showed a disc bulge at L4/5 level and facet joint osteoarthritis at L4/5 and L5/S1.  A MRI scan showed a slight generalised annular bulge at L3/4 and small annular tears at L4/5 and L5/S1 levels and, to a much lesser ‘tiny’ tear, at the L3/4 disc as well.  However, there was no significant disc prolapse as such.

CLINICAL OPINION

He suffers from low back pain.  The identifiable pathologies in the lumbar spine include facet joint osteoarthritis in the last 2 levels and small annular tears in the last 3 levels, more notable in the last 2 levels of intervertebral discs.  The facet joint pain seemed to be more prominent in relation to his back pain at present.  The facet joint osteoarthritis is considered a pre-existing disease, while the annular tears seem to be a reasonably recent event and, on the balance of probability, likely to be related to his fall.  At this point the prognosis remains reasonably favourable but further treatments are necessary.  Surgical treatment is not indicated at this point.  Treatment largely consists of conservative options, such as physiotherapy and back rehabilitation courses.  In his particular case, because of the pain from the facet joint, a CT-guided facet joint steroid injection can be helpful as well.  Overall, his spine does have a degree of permanent partial impairment.”

8.      Mr. Fabian was examined by Dr. van Buuren, general practitioner, in October 2004.  Dr. van Buuren declined to attempt to access what Mr. Fabian’s condition would have been on 3 October 2003 (the date of the claim).  However, Dr. van Buuren was of the opinion that Mr. Fabian’s back seemed to be worse in 2004 than it appeared to Dr. Ho in 2003.

9.      Mr. Fabian was examined by Martina Trapp for the purpose of a Work Capacity/Participation Assessment Report, on 16 October 2003.  Ms. Trapp gave Mr. Fabian an “impairment rating” of nil.

10.     Mr. Fabian was assessed by Dr. Cuming on 10 March 2004.  Dr. Cuming concluded that Mr. Fabian should undertake vocational rehabilitation assistance and then be supported to find suitable work. Dr. Cuming reported that Mr. Fabian should be capable of full-time employment within the next two years. Dr. Cuming gave Mr. Fabian an “impairment rating” of 10 points.

11. The legislative requirements for qualification for the disability support pension are to be found in section 94 of the Social Security Act 1991, the relevant parts of which are:

“Qualification for disability support pension – continuing inability to work

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)…

(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).

Meaning of continuing inability

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.”

12.     As at October 2003, and until at least March 2004, the assessments of Mr. Fabian’s impairment rating ranged from nil to 10.

13.     During the period October 2003 to March 2004, the various assessments were also to the effect that although he would not be able to ride horses or do heavy work, he would, nevertheless, be able to do other less physical types of work, certainly within two years of the assessments.  That is, he did not have a continuing inability to work.

14. During the period October 2003 to March 2004, Mr. Fabian did not satisfy s.94 of the Act because he did not satisfy the 20 point provision, s.94(1)(b), nor the “continuing inability to work” point, s.94(1)(c)(i). That is, he did not qualify for the disability support pension.

15.     The provisions of the Social Security (Administration) Act 1999, require an applicant to qualify for the pension claimed within 13 weeks of the date of application for pension to be payable.  (See ss.11, 37(1) and 41;  and Schedule 2 Clauses 3 and 4).

16.     Mr. Fabian did not qualify for the disability support pension on 3 October 2003, nor within 13 weeks of that date.

17.     The decision to reject the claim for disability pension was correct and is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
B. Hitchcock, Personal Asst

Date/s of Hearing  9 December 2004          
Date of Decision  19 January 2005
Applicant   Mr. Fabian, by telephone
Respondent   Ms. J. Hamilton, departmental advocate