Hoskin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2011] AATA 521
•28 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 521
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5050
GENERAL ADMINISTRATIVE DIVISION ) Re DAMON HOSKIN Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Dr A Frazer, Member Date28 July 2011
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd Dr A Frazer]........
Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – qualification requirements– applicant has impairment – applicant’s impairment does not attract impairment rating of 20 under Impairment Tables – applicant not qualified for disability support pension - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 94 and Sch 1B
REASONS FOR DECISION
28 July 2011 Dr A Frazer, Member Introduction
1. Mr Hoskin (“the applicant”), who is 30 years of age, has been in receipt of disability support pension (“DSP”) from 28 November 2001 in respect of his fibromyalgia.
2. On 23 September 2009 Centrelink undertook a review of the applicant’s DSP and on 30 July 2010 a Centrelink officer decided to cancel the applicant’s DSP from 10 September 2010 because his impairments did not rate at least 20 points on the Impairment Tables.
3. This decision was affirmed by a Centrelink authorised review officer on 8 September 2010 and was then also affirmed by the Social Security Appeals Tribunal (SSAT) on 15 October 2010.
4. On 19 November 2010 the applicant made an application to this Tribunal for review of the SSAT’s decision.
The Relevant Legislation
5. The conditions which must be satisfied before a person is qualified for DSP are set out in paras (a) – (f) of s 94(1) of the Act. It is common ground that the applicant satisfies the conditions set out in paras (d) – (f) of s 94(1). Section 94 of the Act otherwise relevantly provides:
“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;
…
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 independently of a program of support within the next 2 years; and
(b)either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note:For work see subsection (5).
…
94(5) In this section:
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre‑vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work‑related training (including on‑the‑job training).
work means work:
(a) that is for at least 30 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
…”
6. The “Impairment Tables” referred to in para (b) of s 94(1) are set are set out in Schedule 1B to the Act and are relevantly referred to in paragraphs 23 - 24 below.
The Evidence
7. The evidence before the Tribunal comprised:
8. The “T Documents” (T1-T20), pp 1-350) lodged by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the respondent”).
9. Exhibit A1 Secretary, Department of Employment and Workplace Relations v Parry (2007) FCA 1606.
10. Exhibit R1 Centrelink Computer printout of the applicant’s fortnightly earnings from 21 September 2010 to 3 May 2011
11.Medical Report for Job Capacity Assessment (JCA) dated 17 December 2010
12.The oral evidence of the applicant.
13.The oral evidence of Marion Connelly, Centrelink Job Capacity Assessor
The Applicant’s Evidence
14. The applicant is 30 years old and lives independently in rented accommodation. He has lived alone for the past year. He was diagnosed with fibromyalgia about 15 years ago. The applicant said his fibromyalgia has not improved over the years but he has had 15 years now to cope with his illness and learn how to manage it and that he does well to function independently and work as much as he now does. The applicant said he does his best to go with what works and to get himself integrated in society.
15. The applicant said his main problems are still muscle tightness, lower back pain and fatigue.
16. The applicant said that since he started work in 2008 at Quick Corporate Australia as a stationery supplier his hours have increased steadily. He said he can now work for some weeks up to 59 hours a fortnight. He usually works 3 days a week on Tuesday, Wednesday and Thursday and this involves visiting other retailers. The applicant takes inventories for stationery supply for various businesses and orders restocking and replacements of stock. The applicant said it is a “cruisy” type job and he can sustain it because it is flexible. On his working days he gets up between 8 – 9am and is home by around 6.30 pm depending on the traffic. The applicant drives his own car into and out of work which takes around 30 minutes and uses public car parking. The applicant said he has not needed to take any significant absences from work.
17. The applicant also visits the stationery Warehouse for his work and uses a forklift to bring stock up and down from shelves in boxes and move it to the front of the store. The applicant also uses a basket when picking stock and can carry the lighter items, such as paper supplies, but does not carry whiteboards, for example.
18. The applicant said on his days off he relaxes, gets his treatments and does his shopping, washing, cooking and cleaning.
19. The applicant said that the week before the Hearing he had resigned from his job at Quick Corporate Australia. This was by choice as he had been told he was going to lose his job and also because the new rental was coming up on his property. He has decided to move back with his parents in Kalgoorlie.
20. The applicant said he does not like taking medication for his pain. He takes panadeine forte just occasionally and will use Stillnox to sleep a couple of times a week. The applicant prefers natural remedies and uses massage, acupuncture, a chiropractor, heat packs and a massage machine to manage his pain.
The Relevant Medical Evidence
21. The most recent Treating Doctor’s Report completed by Dr Barr, dated 17 December 2010, states the applicant has severe long standing fibromyalgia with pain in the neck, lower back and upper limbs and fatigue. Dr Barr states the applicant is “unable to do all workplace tasks ie lifting work more than 3 days a week.”
22. The JCA report, dated 17 January 2011, commented that the applicant avoided heavy household activities and that he had to complete smaller loads of laundry and put his clothes on an airer because of problems lifting, particularly overhead reaching.
The Impairment Tables
23. Schedule 1B to the Act is headed: “Tables for the assessment of work-related impairment for disability support pension”. The tables themselves are preceded by an “Introduction“ in which it is relevantly stated:
“1.These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. …
2.These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance.
…
8.In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.”
24. Table 20, which is used to assess impairments caused by “miscellaneous conditions”, is (relevantly) as follows:
“Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
…
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end-organ damage.
…
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.
…
TWENTY More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self-care may be required. Symptoms cause severe interference with ability to work or attend work (ie minimal residual work capacity).
…
FORTY Major restrictions in many everyday activities. Capacity for self-care is restricted, leading to dependence on others. No residual work capacity.”
Analysis
Impairments
25. It is common ground that, at all material times, the applicant has had a physical impairment, within the meaning of para (a) of s 94(1) of the Act, by reason of his suffering from longstanding fibromyalgia.
26. The first matter for the Tribunal’s determination is whether the applicant, when his DSP was cancelled, had a total impairment, by reason of the above condition, of at least 20 points under the Impairment Tables, for the purposes of para (b) of s 94(1) of the Act.
27. The Tribunal notes that the applicant’s longstanding fibromyalgia has caused him significant pain and fatigue from adolescence to early adulthood. In the past, the applicant’s fibromyalgia significantly affected his ability to undertake a tertiary degree and also to work. However, the Tribunal accepts the applicant’s own evidence that since around 2008 he is able to manage his fibromyalgia in such a way that he can live independently and also work undertaking light to moderately heavy duties for up to 59 or so hours a fortnight. The applicant now uses mostly natural remedies for his pain and fatigue rather than prescription type medication. The Tribunal considers the appropriate Table to assign a rating for the applicant’s fibromyalgia is Table 20. The Tribunal accepts the applicant’s evidence that he does suffer from pain and fatigue. However, despite this, the applicant is able to live and work independently. The Tribunal considers the appropriate rating for the applicant’s chronic pain under Table 20 is FIFTEEN.
28.Therefore, the applicant does not satisfy s 94(1)(b) of the Act.
CONCLUSION
29. The Tribunal concludes that the applicant has at all material times had impairments within the meaning of para (a) of s 94(1) of the Act and that these impairments attract an impairment rating of FIFTEEN points. The applicant therefore does not satisfy paragraph (b) of s 94(1) of the Act.
30. That conclusion makes it unnecessary for the Tribunal also to consider whether the applicant satisfies paragraph (c) of s 94(1) of the Act.
DECISION
31. For the above reasons the Tribunal affirms the decision under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Dr A Frazer, Member
Signed: ...............[sgd D Brodie]........................
Associate
Date of Hearing 9 May 2011
Date of Decision 28 July 2010
Representative for the Applicant Self Represented
Representative for the Respondent Ms M Conlon
Centrelink Legal Services
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