George Hage and Secretary, Department of Social Services

Case [2014] AATA 895

[2014] AATA  895

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/2434

Re

George Hage

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal

Professor Ronald McCallum AO, Member
Date 4 December 2014
Place Sydney

The decision under review is affirmed.

....................[SGD]....................................................

Professor Ronald McCallum AO, Member

CATCHWORDS

SOCIAL SECURITY—Application for pension—Disability support pension—Whether the applicant has an impairment that is diagnosed, fully treated and stabilised—whether the applicant has impairments that are assessed under the Impairment Tables at a minimum 20 points—Whether the applicant has a continuing inability to work—Decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

Guidelines to the Tables effective from 1 January 2012

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Professor Ronald McCallum AO, Member

4 December 2014

BACKGROUND

  1. The Applicant, Mr George Hage, made an inquiry of Centrelink on 18 May 2012, and on 22 May 2012 he lodged an application for a disability support pension (DSP). This claim was rejected by Centrelink on 20 August 2012. A Centrelink Authorised Review Officer (ARO) affirmed that decision on 21 January 2013. The Applicant unsuccessfully appealed to the Social Security Tribunal (SSAT), which affirmed the ARO decision on 11 April 2013. The Applicant has appealed to this Tribunal for review of that decision.

    THE LEGISLATION

  2. The relevant provisions outlining eligibility for DSP are contained in the Social Security Act 1991 (Cth) (the SS Act) and in the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

  3. The criteria for DSP are set out in s 94 of the SS Act. In the Applicant's circumstances, s 94(1) relevantly provides:

    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; ... .

  4. Put simply, I must be satisfied, first, that the Applicant has one or more physical, intellectual or psychiatric impairments and, second, that these impairments are worth at least 20 points as specified in the impairment tables. Finally, I must be satisfied that the Applicant has a continuing inability to work.

  5. Before further unpacking these criteria, two matters require brief explanation. In the first place, the three paragraphs in s 94(1) of the SS Act are joined by the conjunction "and". This means that these paragraphs must be read cumulatively. Thus, to obtain DSP, the Applicant must have an impairment or impairments, and they must be assessed at a minimum 20 points under the impairment tables, and the Applicant must have a continuing inability to work, unless one of the exceptions applies.

  6. In the second place, s 94 of the Act must be read…

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AGLC
George Hage and Secretary, Department of Social Services [2014] AATA 895
Case
[2014] AATA 895
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) involved an application for a Disability Support Pension (DSP) by George Hage, who was contesting the decision of the Social Security Appeals Tribunal (SSAT) to deny his application. The dispute centred on whether Mr Hage's medical conditions warranted a DSP, specifically whether his impairments were severe enough to meet the criteria of a minimum 20 points under the Impairment Tables and whether he had a continuing inability to work.

The AAT needed to determine whether Mr Hage's chronic lower back pain and stiffness in his left leg qualified for a rating under the Impairment Tables, and if so, what the appropriate rating should be. The tribunal also had to decide whether Mr Hage's impairments met the threshold of 20 points under the tables and whether he had an ongoing inability to work. The medical evidence provided included reports from Dr Ricardo Al Khouri and Dr David Richmond, which were considered alongside Mr Hage's own testimony regarding his physical capabilities and work activities.

In examining the evidence, the tribunal found that Mr Hage's impairments, particularly his chronic lower back pain and stiffness in his left leg, warranted a rating of 5 points under Table 4 of the Impairment Tables, titled "Spinal Condition." The tribunal determined that these impairments did not meet the threshold of 20 points required for a DSP under the Social Security Act. The tribunal concluded that Mr Hage's ability to perform physical tasks, even if limited to two days a week, demonstrated that his functional capacity was not sufficiently impaired to warrant a DSP. The tribunal affirmed the SSAT's decision, finding that Mr Hage did not meet the criteria for the pension.

The tribunal's decision was based on the assessment that Mr Hage's impairments, while present, did not reach the severity required by the Impairment Tables to qualify for a DSP. The evidence showed that he could still perform various physical activities, including work at a plant nursery, albeit at a reduced capacity. Consequently, the tribunal upheld the earlier decision denying the DSP application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Six weeks ago, he commenced working at a plant nursery which is about a seven minute drive from his home. He began working for five days each week, but this was too much. He now works for two days each week.The medical evidence I have examined the medical reports in the documents produced by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) and those in the supplementary documents. They describe the Applicant's injuries and medical treatments from the 1982 motor vehicle accident up to the present. In particular, I note the two following medical reports which were written during the 13 week period between 18 May 2012 and 17 August 2012. First, the report dated 22 May 2012 by Dr Ricardo Al Khouri, who reported that the Applicant suffers lower back pain which is being treated with pain killers. Dr Al Khouri also wrote that the Applicant is "...unable to do physical jobs". However, from the evidence of the Applicant which I have summarised above, he is undertaking work at a plant nursery for two days each week and this work requires him to perform physical tasks. Second, a report from Dr David Richmond dated 29 May 2012states that the Applicant suffers from "chronic mechanical low back pain".The impairment tables My task is to determine whether the Applicant’s chronic lower back pain and stiffness in the left leg attract any points, and if so, what rating should be assigned, under one or more of the Impairment Tables. The Impairment Tables are found in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination also contains the rules for the application of the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg helpfully explains the operation of the impairment tables in the following words. Senior Member Isenberg states at [5]: The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination. [original emphasis.]The appropriate impairment table In its decision of 11 April 2014, the SSAT held that the appropriate impairment table to assess the Applicant’s impairment was Table 1. This table is titled "Functions requiring Physical Exertion and Stamina". The SSAT explained its choice of Table 1: (at 11): The Tribunal considered that Table 1 is more appropriate as his chronic pain and limited mobility affect his endurance. The ARO assessed the Applicant's impairments under Table 4 which is titled "Spinal Function.

Decision

Reasons for decision

As I have found that the Applicant does not have a rating of at least 20 points under the Impairment Tables, it is not necessary for me to determine whether he has an inability to perform work within the meaning of s 94(1)(c)(i) of the SS Act and related provisions.THE DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

In reference to "Selecting Tables for chronic pain" the Guidelines state:where chronic pain does not impact physical exertion and stamina there will be no need to consider the use of Table 1 – Functions Requiring Physical Exertion and Stamina...CONSIDERATION After carefully examining the detailed evidence of the Applicant and the medical evidence, I make the following findings. Given the Applicant's spinal condition, I find that the appropriate table to assess his impairment is Table 4 of the Impairment Tables. Table 4 is titled "Spinal condition". A person’s condition may be assessed at 5 points from Table 4 if there is a mild impact upon functions. The table relevantly provides:There is a mild functional impact on activities involving spinal function.1The person has some difficulty in:(a)activities over head height (e.g. activities requiring the person to look upwards); or(b)bending to knee level and straightening up again without difficulty; or(c)turning their trunk or moving their head (e.g. to look to the sides or upwards) A person’s condition may be assessed at 10 points from Table 4 if there is a moderate impact upon functions. The table relevantly provides:There is a moderate functional impact on activities involving spinal function.1The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or(c)the person is unable to bend forward to pick up a light object placed at knee height; or(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair). I find that the Applicant's impairment of his lower back and consequent stiffness of his left leg, at most, warrants a rating of 5 points under Table 4. It certainly does not warrant a rating of 10 points under this Table. The applicant gave evidence that he can perform most household tasks, can drive a motor vehicle for 30 minutes and can lift objects, even a bag of sand weighing 7 kgs. I assess the applicant’s lower back and left leg conditions at a combined rating of 5 points under Table 4. In case I am found to be in error in not examining Table 1 which is titled "Functions requiring Physical Exertion and Stamina", I make the following comment. A person’s condition may be assessed at 5 points from Table 1 if there is a mild functional impact. The Table relevantly provides: There is a mild functional impact on activities requiring physical exertion or stamina.1The person:(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).