Hendle & Secretary, Department of Family and Community Services

[2000] AATA 198

DECISION AND REASONS FOR DECISION [2000] AATA 198

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No Q1999/610

GENERAL ADMINISTRATIVE DIVISION          )          

Re      BARRY LLOYD HENDLE

Applicant

And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        

Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member  

Date14 March 2000

PlaceBrisbane

…………Signed………………….                  
  D.W. MULLER
  SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – retrospective assessment
Social Security Act 1991: s.94

REQUEST FOR WRITTEN REASONS FOR DECISION

14 March 2000        Mr. D.W. Muller, Senior Member              

1. This is an application by Barry Lloyd Hendle, to review a decision to cancel his Disability Support Pension (DSP) on 22 June 1998.

2. The relevant history of the matter is as follows:

   (i)In 1989 Mr. Hendle had a serious motor vehicle accident.

   (ii)As a result of the motor vehicle accident, Mr. Hendle suffered a back injury and he developed a post traumatic stress disorder (PTSD).

   (iii)In 1991, Mr. Hendle was granted DSP because of his back condition.  At that time there was no assessment made in relation to PTSD.

   (iv)In 1998, the respondent reviewed Mr. Hendle's qualification for DSP.  Mr. Hendle attended a medical practitioner for the purposes of the review.  The medical practitioner assessed Mr. Hendle's back problem at zero impairment under the appropriate Impairment Tables.

   (v)Mr. Hendle's DSP was cancelled as from 22 June 1998.

   (vi)The cancellation of Mr. Hendle's DSP caused him great distress and aggravated his PTSD.

   (vii)In late 1999, Mr. Hendle made a further application for DSP.

   (viii)Mr. Hendle was reassessed under the Impairment Tables as having an impairment of 10 per cent in relation to his back and 20 per cent for his PTSD.

   (ix)Mr. Hendle was re-granted the DSP on 17 January 2000.

1. Mr. Hendle seeks a review of the decision to cancel his DSP in June 1998.

2. The orthopaedic evidence in relation to Mr. Hendle's back is that he has a continuing, degenerative condition which will not improve with time.  The condition of his back was probably a little worse in late 1999 than it was in mid-1998.  It would certainly not have been better in 1999 than it was in 1998.

3. The psychiatric evidence is that Mr. Hendle's PTSD would have been markedly worse at the end of 1999 than it was in mid-1998 because it was the cancellation of his DSP in mid-1998 which aggravated his PTSD.  It is not possible, on the evidence, to put a figure on the degree of Mr. Hendle's psychiatric impairment as at mid-1998.  To do so would be to speculate.

4. The relevant provisions relating to qualification for DSP are contained in s.94 of the Social Security Act 1991.

   "94(1) [Qualification – continuing inability to work]  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"

5. Mr. Hendle told the Tribunal that when he was examined in 1998 he may well have given the impression that he had a zero impairment in relation to his back because he had been taking pain killers at the time.  Thus he was able to perform the various tests without being restricted by pain.

6. Under the circumstances, the 1998 assessment of Mr. Hendle's impairment due to his back condition should have been higher than zero.  Probably it was then about the same as it is now, 10 points.

7. As for his PTSD, it is really impossible for the Tribunal to say what the impairment was in mid-1998.  It now rates 20 points under the Impairment Tables but it has deteriorated markedly since mid-1998.   The question of Mr. Hendle's PTSD was not a significant factor in mid-1998.  It would probably have rated at a low impairment.

8. The Tribunal is satisfied that in mid-1998 Mr. Hendle would not have satisfied the 20 points qualification, in sub-section 94(1)(b) set out above.

9. The decision to cancel Mr. Hendle's DSP on 22 June 1998 is affirmed.

   I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

   Signed:         .....................................................................................
              R. Hayes, Associate

   Date/s of Hearing  18 February 2000
   Date of Decision  14 March 2000 (request for written reasons)
   Applicant  Mr. Hendle, himself
   Respondent  Mr. N. Foster, departmental advocate