HORN and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 256

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 256

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0120

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY HORN

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Miss E A Shanahan, Member

Date13 April 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) E A Shanahan

Member

SOCIAL SECURITY – disability support pension – condition not fully treated – disability support pension granted on new application – applicant seeking payment of arrears – decision affirmed

Social Security Act 1991, s 94

Tables for the Assessment of Work‑Related Impairment for Disability Support Pension

REASONS FOR DECISION

13 April 2010 Miss E A Shanahan, Member       

1.      Mr Horn applied to Centrelink for a disability support pension (DSP) on 22 October 2007.  Centrelink is the service provider for the Department of Families, Housing, Community Services and Indigenous Affairs.  Mr Horn suffers from chronic low back pain and limitation of the range of movement of the lumbar spine following a work-related back injury in 2001.  A diagnosis of lumbar spondylosis with L5/S1 disc loss of height had been made on radiological grounds.

2.      A Centrelink delegate decided that Mr Horn did not qualify for the DSP based on medical evidence, as related by Mr Horn, that surgical treatment was still being considered in early 2008.  In addition, a job capacity assessment had found that Mr Horn was capable in the intermediate term of working up to 22 hours per week, depending on his response to treatment including any surgery.  His lumbar spondylosis was considered permanent, fully diagnosed and treated except for the consideration of surgical intervention. The Social Security Appeals Tribunal (SSAT) affirmed the Centrelink decision.  Mr Horn applied to this Tribunal for a review of the SSAT decision.

3. Mr Horn was self-represented and gave his evidence by telephone. Mr de Uray appeared for the respondent. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  The respondent provided additional documents - a report from Mr Peter Kudelka, orthopaedic surgeon, dated 14 December 2009 and a medical certificate from Dr S Loosemore, the applicant’s treating general practitioner, dated 26 March 2009.

BACKGROUND TO THE APPLICATION

4.      At the commencement of the hearing, the Tribunal was informed that Mr Horn was receiving DSP and had been since July 2009.  Neither the Tribunal nor Mr de Uray had been aware of this change in his status.  Mr Horn was now seeking payment of arrears back to the date of his original application - 22 October 2007.

5.      In his evidence Mr Horn confirmed that he had been granted the DSP in October 2009 and payment was backdated to early July 2009.  He agreed that until early 2008 he was awaiting a decision regarding surgical intervention, the possibility of which had been expressed by Mr Razif, orthopaedic surgeon, who saw him on two occasions, 20 December 2007 and 12 March 2008.  Mr Horn said that when he sought a review by Mr Razif later in 2008 he was informed that Mr Razif had retired.  He had been given the names of four orthopaedic surgeons whom he might consult but had been unable to arrange an appointment.

6.      Mr Horn said he had lodged a new application for the DSP on 11 February 2009.  After a delay of some weeks, Centrelink staff told him that his application could not be considered while his application to the Administrative Appeals Tribunal (AAT) was pending.  He had reapplied to Centrelink in June 2009 and was eventually successful. 

7.      Both of the applications lodged in 2009 had been new applications because they included a new medical condition, which Dr Loosemore, had diagnosed as osteoporosis of the lumbar spine.  Dr Loosemore’s handwriting is very difficult to decipher.  Mr Horn had committed to memory the name of the condition that appeared on his certificates of inability to work and, in fact, it was first mentioned in a treating doctor’s report dated 15 January 2008 (T15).  Mr Horn informed the Tribunal of his osteoporosis and it was then possible to decipher Dr Loosemore’s handwriting.

8.      Clearly, Centrelink did not recognise that a new disease process was being reported and that the application of February 2009 was a new application, and that it should have been considered at that time.

9.      Mr de Uray had arranged for Mr Horn to be assessed by Mr Kudelka on 10 December 2009.  Mr Kudelka assessed Mr Horn’s loss of normal range of movement in the presence of back pain at 50 per cent.  This attracted an impairment rating of 20 points under the Tables for the Assessment of Work‑Related Impairment for Disability Support Pension in Schedule 1B of the Social Security Act 1991 (the Act).  Mr Kudelka had available to him several CT scans, the most recent of which showed a right posterolateral disc herniation at L4/5 and a slight disc bulge at L5/S1.  Mr Kudelka was of the opinion that Mr Horn had retained a capacity to work in a sedentary occupation.  Mr Razif had found a similar 50 per cent reduction in the range of movement of the lumbar spine when he saw Mr Horn in November 2007.

10.     It would appear that at the time of his application in 2007 Mr Horn satisfied s 94(1)(a) of the Act. He had a condition, lumbar spondylosis with disc pathology, that was permanent, had been investigated and treated but not fully stabilised because surgical intervention was being considered.  On the basis of Mr Razif’s findings, as confirmed by Mr Kudelka, Mr Horn had an impairment rating of 20 points, satisfying s 94(1)(b) of the Act.  All assessments regarding work capacity were to the effect that Mr Horn retained a capacity for work.  Thus, he did not qualify for the DSP, nor did he qualify within the period of 13 weeks from the time of his application on 22 October 2007.  When the Tribunal explained this to Mr Horn, he agreed with this conclusion.

11.     Clearly Centrelink did not recognise that a new disease process was reported by Dr Loosemore and that the application made by Mr Horn on 11 February 2009 was in fact a new application and should have been considered at that time.  Mr de Uray has undertaken to make further investigations regarding whether Mr Horn qualified for the DSP in February 2009.  The Tribunal affirms the decision under review.

I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member

Signed:     .Dianne Eva
  Clerk

Date of Hearing  19 March 2010
Date of Decision  13 April 2010
Representative for the Applicant    Self-Represented
Solicitor for the Respondent          Mr T. de Uray, Centrelink Advocacy Branch