Flavel and Secretary, Department of Family and Community Services

[2004] AATA 734

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 734

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/523

GENERAL ADMINISTRATIVE DIVISION		)
Re		FREDERICK CHARLES FLAVEL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date12 July 2004

PlaceAdelaide

Decision The Tribunal  affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Disability Support Pension – physical, intellectual or psychiatric impairment  – does impairment attract a rating of at least 20 points under the Impairment Tables – continuing inability to work – decision affirmed

Social Security Act 1991 s 94

REASONS FOR DECISION

12 July 2004   Senior Member WJF Purcell  

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 15 August 2003, which affirmed the decision of an Authorised Review Officer of 23 June 2003, to reject the applicant’s claim for Disability Support Pension.

2. The applicant has requested the matter be dealt with on the papers, and the respondent (the Department) has agreed to this course. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (the T Documents), together with a report from the applicant’s treating general practitioner, Dr Malone.

3.      The applicant, who is 48 years of age, suffers from chronic back/spinal pain.  No other medical conditions have been mentioned for consideration.  He was schooled to year 10 and has worked as a foundryman, labourer, handyman and most recently as a carer.  He lives in rural South Australia with his intellectually disabled wife, and attention deficit hyperactivity disorder son, for whom he cares.

4.      On 7 February 2003, the applicant lodged a claim with Centrelink for Disability Support Pension.  He was assessed by Dr Richards of Health Services Australia on 7 May 2003.  Dr Richards considered that the applicant has a 25 percent loss of range of neck movement, and a 25 percent loss of range of back movement; but that as these conditions were not fully treated and stabilised, an impairment rating could not be assigned.  On 13 May 2003 the applicant’s claim was rejected.

5.      On 23 June 2003 an Authorised Review Officer affirmed the decision, but considered the conditions to be permanent, attracting an allocation of 5 impairment points for the applicant’s neck condition, and 10 impairment points for his lower back condition – a total of 15 impairment points.  The claim was rejected on the basis that the applicant’s conditions did not attract 20 points.

6.      On 15 August 2003 the SSAT affirmed the decision under review, finding that the applicant’s condition was permanent, as it had been fully diagnosed, treated and stabilised, and awarded 5 impairment points under Table 5.1 (Cervical spine) of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act), because of the loss of quarter of normal range of movement.  The SSAT also awarded 10 impairment points under Table 5.2 (Thoraco - lumbar-sacral spine) of the Impairment Tables because of the loss of one-quarter of normal range of movement as well as back pain or referred pain – a total of 15 impairment points.

7.      The applicant’s treating doctor, Dr Malone, stated in a report dated 24 February 2003 that she expected his condition to continue for more than 2 years, and to fluctuate over that period [T11/35].  In her report of 18 November 2003 [Exhibit R1], she stated that she continued to be of the same opinion.

8.      In his letter to this Tribunal in support of his application, the applicant stated, in part:

“I am appealing against the decision made by Centrelink and Appeals Tribunal.  I enclose a copy of the decision.

Both doctors say that my disability is permanent but I miss out.  And sure I can do a small amount of work, but I am in constant paid, ie

1.        I have not been out of pain for months now, normally is only a dull ache, but other times I am completely bed ridden, and various stages in between.  A lot of times my legs feel as if their [sic] swollen to elephant size, even though they are not.

2.        If I had to rate my quality of life out of ten, I would say about 2, for how can you tell you [sic] ADD child daddy can’t carry him or give him rides any more.  I know they have to go by the rules, but how about what I go through and am missing out on or doesn’t quality of life count any more.

3.        To give an example of my problem our garden is now super soft due to rain.  The other day I knelt down to pull out small weeds, and in maybe 5-10 minutes I had to lay down and take two pain killers.  These are the strongest I can buy without a prescription, and I’m going through a lot.

So sure I can do little bits of work but it sure takes a lot out of me.

…”

9.      In a letter to the Tribunal  dated 13 April 2004 the applicant stated that he had no new medical evidence, and for the Tribunal to “deal with the matter”.

10. To qualify for Disability Support Pension a person must satisfy the criteria specified in s 94(1) of the Act, which provides:

“(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

(iii)      * * * * *

(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.

Note 1: For Australian resident,  qualifying Australian residence and qualifying residence exemption see section 7.

Note 2: for Impairment Tables see section 23(1) and Schedule 1B.”

11. The Department contends that the applicant does not satisfy s 94(1)(b) of the Act, in that he has not acquired 20 impairment points. Dr Richards did not assign impairment points as he considered the condition temporary. However, the SSAT did not agree, and found the condition was permanent as it had been fully diagnosed, treated and stabilised, but still could not award sufficient impairment points to satisfy s 94(1)(b) of the Act, which requires 20 impairment points.

12.     The Department contends also that the applicant has been invited to provide further medical evidence to substantiate his claim for Disability Support Pension, and no such evidence has been provided.

13. Section 94(2) of the Act provides:

“(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.

Note:   For work see subsection (5).”

14.     Table 5.1 of the Impairment Tables reads:

“TABLE 5.1Cervical spine

Rating           Criteria

NIL                Normal or nearly normal range of movement.

FIVE              Loss of quarter of normal range of movement.

TENLoss of half of normal range of movement and frequent/constant neck pain or loss of three-quarters of normal range of movement with infrequent neck pain.

TWENTYLoss of three-quarters of normal range of movement and constant neck pain.

THIRTYLoss of almost all movement, or complete ankylosis in position of function.

FORTYAnkylosis in an unfavourable position, or unstable joint.”

15.     Table 5.2 of the Impairment Tables reads:

“TABLE 5.2Thoraco – 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.

RatingCriteria

NIL                Normal or nearly normal range of movement.

FIVE              Loss of one-quarter of normal range of movement.

TENLoss 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.

TWENTYLoss 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.  

FORTYAnkylosis in an unfavourable position, or unstable joint.”

16.     I have examined carefully all of the evidence contained in the T documents, together with the subsequent report of Dr Malone of 18 November 2003.  In the absence of further medical evidence however, I am satisfied that on the evidence I must agree with the Reasons for Decision of the SSAT.  On the whole of the evidence, the applicant’s impairment is of 15 points under the Impairment Tables. He does not satisfy s 94(1)(b) of the Act therefore, and is not qualified for payment of Disability Support Pension.

17.     For these reasons the Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date of Hearing  30 June 2004
Date of Decision  12 July 2004
Counsel for the Applicant         In person
Solicitor for the Applicant          -
Counsel for the Respondent     Mr R Kilderry
Solicitor for the Respondent     Centrelink Service Recovery Team